Wilbourn v. Hobson, 92-CA-0325

Decision Date29 July 1992
Docket NumberNo. 92-CA-0325,92-CA-0325
Citation608 So.2d 1187
PartiesHershel WILBOURN v. Peggy HOBSON.
CourtMississippi Supreme Court

Natie P. Caraway, Olen M. Bailey, Jr., Wise Carter Child & Caraway, Michael S. Allred, Allred & Donaldson, Jackson, for appellant.

Tyree Irving, Greenwood, John L. Walker, Jr., Walker Walker & Green, Jackson, for appellee.

En Banc.

McRAE, Justice, for the Court:

In this appeal from an order entered by the Hinds County Circuit Court on April 3, 1992, we are asked to put to rest the issues raised in the hotly contested November 5, 1991, election for the District 3 seat on the Hinds County Board of Supervisors. The Circuit Court granted summary judgment to the appellee, Peggy Hobson, on the legality of twenty-seven (27) uninitialed affidavit ballots and six (6) affidavit ballots opened by poll workers. Adding these ballots to the totals certified by the Hinds County Election Commission, the Circuit Court declared Hobson the victor in the election by two votes. Limited by the narrow issues raised by the appellant and by the stipulation of facts agreed upon by Wilbourn, Hobson, and their attorneys, we affirm the decision of the Circuit Court.


By a narrow margin, the Hinds County Election Commission certified Hershel Wilbourn as the winner of a seat on the Board of Supervisors in the November 5, 1991, general election. In the legal battles which followed, attention focused on the legality of certain affidavit ballots, those which are issued to individuals whose names do not appear on the pollbooks but who aver in writing that they are eligible to vote in that precinct. The more than ten thousand votes which were cast electronically are not at issue.

Peggy Hobson filed an election contest in the Hinds County Circuit Court pursuant to Miss.Code Ann. Sec. 23-15-951 (1972). See In re Wilbourn, 590 So.2d 1381 (Miss.1991). Over a period of just seven months, there ensued a complicated history of legal maneuvering through mine fields set by each party for the other in the chancery court, in the circuit court, and, ultimately, up to this Court by means of petitions for interlocutory appeals and extraordinary relief. We do not address these myriad manipulations; rather, we look only at the appeal raised directly from the Circuit Court decision.

Both parties filed motions for summary judgment and stipulated that Judge Graves could hear the case as a jury. They waived any technical errors involving the summary judgment. In support of their motions, the parties filed a joint Stipulation of Facts. In pertinent part, Wilbourn and Hobson stipulated or agreed that the following facts were true:

--The Hinds County Election Commission certified Hershel Wilbourn the winner of the District 3 Supervisors election by these vote totals: Hobson, 5,321 and Wilbourn, 5,352.

--Not included in that certification were the following:

(a) 27 uninitialed affidavit ballots for Hobson;

(b) 1 uninitialed affidavit ballot for Wilbourn;

(c) 1 curbside ballot for Hobson;

(d) 6 affidavit ballots for Hobson opened by the poll workers.

--The curbside ballot, (c) above, is legal and should be added to Hobson's total.

--There is no question as to the integrity of the ballots set forth in (a), (b), and (d) above. The legality of the ballots set forth in (a), (b), and (d) above is unquestioned as to everything except that 28 ballots, set forth in (a) and (b) above, were not initialed on the back, and the envelopes containing the six ballots set forth in (d) above, were opened by the poll workers at the close of the polls and the ballots counted by the poll workers who then returned the ballots to their envelopes and delivered them, along with their other election materials, to the Hinds County Election Commission.

--All persons who cast the 6 affidavit ballots, (d) above, were qualified voters of Hinds County Supervisor District 3, a fact verified by the Hinds County Election Commission upon their delivery to them.

--If the ballots set forth in (a), (b), and (d) are declared legal, they should be added to the appropriate party's vote total.

--Based upon this stipulation, if Plaintiff's motion for summary judgment is granted, the ruling would be dispositive of the case and would be a final, appealable judgment pursuant to MRCP 54.

--The parties waive any objection to the court and not the jury declaring a winner in this election contest based upon the court's ruling on the motions for summary judgment.

--This stipulation is in support of both the defendant's and plaintiff's motions for partial summary judgment, which are to be treated as motions for summary judgment rather than for partial summary judgment.

The Circuit Court found that the twenty-seven uninitialed affidavit ballots were valid pursuant to Miss.Code Ann. Sec. 23-15-573 (Supp.1990), which deals specifically with the casting of affidavit ballots. The statute is silent as to any requirement that such ballots be initialed. The Circuit Court further found that Miss.Code Ann. Sec. 23-15-541 (Supp.1990), which requires generally that paper ballots must be initialed by an "initialing manager" or "alternative initialing manager," was not applicable to affidavit ballots. In so determining, he applied the rule of statutory construction that a specific statute such as Sec. 23-15-573 controls over a general statute.

The Circuit Court further determined that because the integrity of the six ballots, which had been opened by poll workers in an open forum after the polls had closed, and returned to their envelopes prior to being delivered to the Election Commission, was uncontroverted pursuant to the Stipulation, that to declare them illegal because of the poll workers' actions would result in an unwarranted and unreasonable disenfranchisement of the six voters. On the basis of the Stipulation, the Circuit Court also found that the lone curbside ballot was legal.

Based on its determinations, the Circuit Court tallied the twenty-seven (27) uninitialed affidavit ballots, the six (6) affidavit ballots which had been opened by the poll workers, and one (1) curbside ballot with the 5,321 votes for Hobson which had been certified by the Election Commission. This gave her a total of 5,355 votes. One (1) uninitialed affidavit was added to Wilbourn's 5,352 certified votes, giving him a total of 5,353.

Hobson thus was declared the winner of the contested seat by two votes. The Circuit Court ordered the Clerk of the Court to issue a Certificate of Election to Hobson pursuant to Miss.Code Ann. Sec. 23-15-951 (Supp.1990). She was sworn in as Supervisor for Hinds County, District 3 on April 3, 1992.


At the outset, we emphasize that the parties have laid before us two very narrow issues. The case is (and can only be) decided on those two points alone. Wilbourn and Hobson have stipulated virtually all the relevant facts. A synopsis of their stipulations includes the following:

(1) the Hinds County Election Commission certified Hershel Wilbourn the winner of the November 5, 1991, election;

(2) the vote totals certified by the Hinds County Election Commission did not include the contested affidavit ballots;

(3) the contested affidavit ballots, if declared legal, should be added to the parties' respective vote totals;

(4) there is no evidence questioning the integrity of the contested ballots; and

(5) the ballots are legal in every respect apart from the two issues addressed on this appeal.

A stipulated fact is one which both parties agree is true. Where the parties file and gain court approval of a formal stipulation agreement as Wilbourn and Hobson have done, the factual issues addressed in the agreement are forever settled and excluded from controversy. Neither party can later change positions. Johnston v. Stinson, 434 So.2d 715 (Miss.1983); Vance v. Vance, 216 Miss. 816, 63 So.2d 214 (1953); Stone v. Reichman-Crosby Co., 43 So.2d 184 (Miss.1949). Furthermore, factual stipulations set boundaries beyond which this Court cannot stray. As stated in Corpus Juris Secundum:

In the absence of grounds which will authorize a party to a stipulation to rescind or withdraw from it, ... the courts, both trial and appellate, ... are bound by stipulations in respect of matters which may validly be made the subject matter of stipulations. Courts are bound to enforce stipulations which parties may validly make, where they are not unreasonable or against good morals or sound public policy. Ordinarily they have no power to ... go beyond the terms [of such stipulations] ... or to make findings contrary to the terms of a stipulation, or render a judgment not authorized by its terms.

83 C.J.S. Stipulations Sec. 17 (1953); see also Roberts v. Robertson, 232 Miss. 796, 100 So.2d 586 (1958) (court cannot look behind stipulation of parties). In reviewing this case, we are thus constrained to abide by Wilbourn's and Hobson's stipulations of fact. We must assume that the contested ballots are not tainted by fraud or malfeasance of any kind; we must assume that the ballots conform to all legal requirements outside the two specific issues raised on appeal. Stated simply, Wilbourn and his attorney have stipulated away every point of fact that might otherwise have had a bearing on our decision. We are therefore left with two sterile questions of law on which Wilbourn's claim to elected office must stand or fall. We now turn to the merits of those two issues.




Twenty-eight affidavit ballots cast in the District 3 Supervisor election were not initialed by the initialing manager. Twenty-seven of these ballots were cast for Hobson; one was cast for Wilbourn. According to Wilbourn, the law requires that all paper ballots be initialed. Since these were not, he argues, they are void and should not be counted.

The issue turns largely on the wording of two statutes: one, a statute of general...

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39 cases
  • Winder v. State
    • United States
    • Mississippi Supreme Court
    • June 30, 1994
    ...Even on non-procedural statutes we have held that this Court could treat a statutory mandate as discretionary. Wilbourn v. Hobson, 608 So.2d 1187, 1189 (Miss.1992). I am thus inescapably led to the conclusion that Miss.Code Ann. Sec. 99-17-1 insofar as it seeks to guarantee unto a defendant......
  • Dycus v. State
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    ...agreement... the factual issues addressed in the agreement are forever settled and excluded from controversy." Wilbourn v. Hobson, 608 So.2d 1187, 1189 (Miss.1992) (emphasis added). "Neither party can later change positions," and those "stipulations set boundaries beyond which this Court ca......
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    • Mississippi Supreme Court
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    ...of the statute in question as a whole, taking into consideration each provision of the statute on the entire subject. Wilbourn v. Hobson, 608 So.2d 1187, 1191 (Miss.1992) (citations omitted). Since Sec. 11-51-75 and Sec. 11-51-77 both concern appeals to the circuit court from decisions of t......
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  • The Democracy Canon.
    • United States
    • Stanford Law Review Vol. 62 No. 1, December 2009
    • December 1, 2009
    ...in Hasen, Untimely Death, supra note 2. (69.) 90 N.E. 942 (N.Y. 1910). (70.) Id. at 943. (71.) Id.; see also Wilbourn v. Hobson, 608 So. 2d 1187, 1193 (Miss. 1992) ("If the integrity of a ballot is unquestioned, there is no good reason to disenfranchise a voter for some technical aberration......

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