BONNIE HENDERSON v. SAM HODGES, MARTHA BROWN, CITY OF CLARKSON, ARVIL DUNN, JACK GOLDEN, SHARON GUFFEY, AND MARGARET WOOSLEY
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000352-MR
BONNIE HENDERSON
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 98-CI-00376
SAM HODGES, MARTHA BROWN, CITY OF
CLARKSON, ARVIL DUNN, JACK GOLDEN,
SHARON GUFFEY, AND MARGARET WOOSLEY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
Bonnie Henderson has appealed a judgment of the
Grayson Circuit Court upholding the November 1998 election for
the office of Mayor of the City of Clarkson, a city of the sixth
class located in Grayson County.
Henderson finished second to
Sam Hodges, and Arvil Dunn finished third.
Henderson initiated
an election contest alleging (1) that voter records had been kept
in such a way that there could be no assurance that only
qualified voters voted in the City election; and (2) that Hodges
had been involved in corrupt practices that should have
disqualified his candidacy for mayor. We affirm the decision of
the circuit court that upheld the validity of the election.
The City of Clarkson is contained completely within
Grayson County’s Clarkson voting precinct, more specifically
identified as A103.
The voting precinct also contains Grayson
County voters who are not residents of the City of Clarkson and
therefore not eligible to participate in the City elections.
Review of plaintiff’s exhibit 2 indicates that 1,438 voters are
registered to vote in the precinct.
By letter intended as a
follow-up to her testimony before the trial court, the Grayson
County Clerk indicated that 654 of these voters were coded as
eligible to vote in the elections in the City of Clarkson.
In
the contested November 1998 election, Hodges received 161 votes,
Henderson received 135 votes, and Dunn received 44 votes.
On appeal, Henderson alleges that the voter
registration book that was maintained in the voter precinct and
the procedures that were followed by the election officers were
so deficient or contrary to statutory law as to justify the
setting aside of the election.
Henderson claims that the voter
registration book was so poorly maintained that many voters not
entitled to vote in the election for Mayor of the City of
Clarkson could have voted in that election and that the precinct
officers made inadequate efforts to determine which voters were
entitled to vote in the City election.
In preparation for the November 1998 election, the
Grayson County Clerk requested from the City a list of eligible
voters in accordance with KRS 116.200.
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The City responded with a
list of utility service subscribers.
Persons receiving such
services who were not City residents were specially coded on the
list.
The county clerk testified that, being aware of the
limitations of the City’s response, the Board of Elections
attempted to integrate that list with other listings including
the records prepared to support 911 emergency services.
Their
efforts were not wholly successful as demonstrated by the fact
that 23 voters who appeared at the polls on election day were
improperly coded as being qualified to vote in City elections and
ten other voters who appeared at the polls were improperly coded
as not being qualified to vote in City elections.
that the precinct roster contained errors.
It is obvious
Perhaps a better one
could have been prepared with more assistance from the City of
Clarkson.
However, the question presented to the trial court was
whether these errors affected the fairness of the election.
Henderson also complains about the efforts made by the
election officials to properly verify who was entitled to vote in
the City elections.
Unfortunately, in attempting to make this
point, Henderson’s brief occasionally resorts to somewhat
fanciful recitations of the evidence presented.
the brief, Henderson states:
On page eight of
“As Ms. Manion testified, whether
you were permitted to vote in the election was pretty much based
upon an honor system.”
Review of the record indicates that this
statement was actually made by counsel for Henderson.
The
testifying election officer did not agree with the statement.
The exchange occurred during a lengthy questioning concerning the
election officers’ efforts to identify voters and insure that
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they were properly able to cast their ballots.
On page nine of
the brief, counsel for Henderson states that Wade and Lashell
Robin Lashley voted in the City election.
Their testimony was
that they voted at the Clarkson precinct (probably improperly due
to their move out of the precinct) but that they did not vote in
the City election.
Tammy Meredith and Lori Powell were allowed
to vote in the City elections because the address given on the
precinct roster was clearly within the City of Clarkson.
Jack
Durbin did not testify that the election officials were going to
allow him to vote even though he was not a City resident.
Rather, he merely testified that from his observation, the voting
machine was reset for him to vote as it was for every voter.
Henderson testified that Ethel Skaggs, who she brought
to the polling place, was allowed to vote without signing the
precinct roster.
But, Henderson’s testimony also recounts the
confusion that occurred in attempting to assist this 97-year-old
lady and her daughter in properly casting their ballots.
The standard of review of a contested election by the
circuit court and the appellate court is set forth in Kentucky
Revised Statutes (KRS) 120.165(4):
If it appears from an inspection of the
whole record that there has been such fraud,
intimidation, bribery or violence in the
conduct of the election that neither
contestant nor contestee can be judged to
have been fairly elected, the Circuit Court,
or an appellate court, on appeal, may adjudge
that there has been no election. . . .
The precinct roster for the Clarkson precinct was not
in perfect shape on election day 1998.
But, it appears that the
election officers and the voters cooperated to make the best of
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occasionally confused situations.
The trial court found that
only two voters (an elderly couple living on the edge of the
City) were improperly allowed to vote in the City elections.
Furthermore, no eligible voters were denied the opportunity to
vote in the City elections.
The trial court’s findings in this
regard are not clearly erroneous, and thus, must be affirmed.1
Therefore, we cannot say that the casting of two erroneous votes
tainted the election under the statutory standards set out in KRS
120.165(4).
Henderson also alleges that Hodges participated in
corrupt practices by knowingly soliciting the votes of four
individuals not legally entitled to vote in the City of Clarkson
because they were not residents of the City.
In the case of
Dennie and Jodie Wilkerson, the trial court found that they were
entitled to be considered residents of the City of Clarkson, but
had not actually voted in the November 1998 election.
This Court
does not need to review the actual question of their entitlement
to vote in the City since that did not occur.
The fact that the
trial court could not definitively say that these two citizens
were not residents of Clarkson demonstrates that Hodges could
reasonably have believed that they were residents of the City
when he witnessed their signatures on the voter registration
cards.
The trial court found that Charles and Ester Manion had
improperly voted in the City election in November 1998, since the
Manions were not residents of the City.
1
However, testimony
Kentucky Rules of Civil Procedure 52.01.
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demonstrated that this elderly couple lived on a street which had
been recently annexed into the City, although the land on which
their house sat had not been included in the annexation.
Testimony further demonstrated considerable confusion as to what
had been intended and what was actually accomplished by the
annexation.
The trial court did not err in finding that Hodges
had no notice of the Manions’ nonresident status when he
requested their vote in the election.
Henderson cites the recent Supreme Court the case of
Ellis v. Meeks, Ky., 957 S.W.2d 213 (1997).
Meeks involved
activities by a candidate within the polling place itself which
was construed as improper solicitation of votes.
There was no
conduct by Hodges in this case which could be regarded as
approaching the standard of Meeks.
The judgment of the Grayson Circuit Court upholding the
election of Sam Hodges as Mayor of the City of Clarkson is hereby
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE SAM HODGES:
James T. Kelley
Elizabethtown, Kentucky
David B. Vickery
Leitchfield, Kentucky
BRIEF FOR APPELLEES MEMBERS OF
THE GRAYSON COUNTY ELECTION
BOARD:
Thomas H. Goff
Leitchfield, Kentucky
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