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D. P. RIZZO v. LEE C. BIZZELL

JULY 13, 1988

D. P. RIZZO
v.
LEE C. BIZZELL



BEFORE DAN LEE, ROBERTSON AND ZUCCARO.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

This appeal is taken from an adverse judgment against plaintiff below, D. P. Rizzo, in his suit contesting the

August 25, 1987, Democratic Primary runoff election for the post of Bolivar County Supervisor, District 2. Rizzo lost the runoff to Lee C. Bizzell and filed this action which was heard before a special tribunal made up of the special judge and five election commissioners of Bolivar County, Mississippi. Based on a bill of exceptions, Rizzo prosecutes this appeal specifically alleging that the special judge made erroneous findings of fact and conclusions of law concerning several alleged irregularities.

 I.

 On August 25, 1987, Appellant D. P. Rizzo (hereinafter" Rizzo ") and Appellee Lee C. Bizzell (hereinafter" Bizzell ") were runoff opponents in the second Democratic primary election for District 2 Supervisor of Bolivar County, Mississippi. Bizzell received 1,494 votes and Rizzo 1,316, a difference of 178 votes. On September 14, 1987, Rizzo filed a petition to contest the election before the Bolivar County Democratic Executive Committee, contesting the second primary election and praying that it cause new elections to be held in both the central Cleveland precinct and the east central Cleveland precinct (wherein there were 1,290 and 977 registered voters, respectively). The petition charged numerous instances of irregularities, violations of statutes and fraudulent acts occurred at these two precincts.

 The executive committee denied Rizzo's petition on September 23, 1987, and on October 23, 1987, Rizzo filed a complaint in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi, praying that upon judicial review of the action of the executive committee, new elections be ordered in each of the involved polling places. On or about November 6, 1987, Bizzell filed an answer with defenses to the complaint including a motion to dismiss. On December 9, 1987, the specially-appointed judge entered an order setting this matter for trial on January 19, 1988. A special tribunal comprised of the special judge and the five Bolivar County election commissioners heard the trial on January 19 and 20, 1988. Bizzell entered into the office of supervisor on January 1, 1988, some three weeks prior to the trial.

 At the trial's conclusion, the special judge made oral findings of fact and conclusions of law, and granted the election commissioners a period of time thereafter within which to file separate findings to be made a part of the special judge's ruling. Though he found a substantial number of the allegations to have been sustained by the evidence, the special judge held that the will of the voters could be ascertained without special elections at the involved precincts, and Bizzell was declared the winner of the second Democratic primary

 election. On January 26, 1988, the election commissioners filed in the trial court their separate finding of fact wherein four of the five election commissioners (Stringer, Washington, Denson and Vowell) disagreed with the special judge and concluded that a new election should be held at the east central Cleveland precinct, and three of the five election commissioners (Stringer, Washington and Denson) concluded that a new election should be held at the central Cleveland precinct.

 On February 2, 1988, Rizzo filed his notice of appeal and on February 4, 1988, he filed in this Court his bill of exceptions and bond for costs as required by statute in election contests. Rizzo submits that the judgment of the special judge resulted from material errors in the findings of fact and conclusions of law, and that new elections for the office of Bolivar County, Mississippi, District 2 supervisor should be ordered at both the central Cleveland and east central Cleveland precincts.

 In this Court, Rizzo submitted a bill of exceptions rather than seeking to submit a transcript as allowed under Miss. Code Ann. 23-15-922 (Supp. 1987). Bizzell submitted two affidavits alleging Rizzo's bill of exceptions summarizing the testimony was incorrect or incomplete in several particulars, and Bizzell filed appellee's corrections/additional to the bill of exceptions.

 As noted above, Rizzo contested the voting at only two precincts: 1) the east central Cleveland precinct, and 2) the central Cleveland precinct.

 A. Central Cleveland Precinct.

 The only allegation of irregularity at the central Cleveland precinct involved Virginia Dickerson, Bizzell's sister-in-law. There seems to be no dispute that for several hours Ms. Dickerson handed out campaign literature within 150 feet of the polling place. The special judge so found.

 At the central Cleveland precinct, however, the polls were sandwiched between another polling place and a street so that no one could observe the 150-foot limit. Thus, by agreement, all campaign workers stood across the street from the polls. Ms. Dickerson apparently violated this agreement by crossing the street and campaigning close to the polls for approximately six hours, until instructed to retire to the position across the street by an election official.

 Rizzo admitted that he told the Democratic executive committee that he could not say he lost votes on account of any violation at the central Cleveland precinct. Rizzo admitted his

 workers also distributed literature within 150 feet of the polls according to the agreement.

 B. East Central Cleveland Precinct.

 1) Poll watcher (Mr.) Beverly Perkins

 Though Rizzo alleged some 17 separate violations, central to his claim for a new election in the east central Cleveland precinct was the conduct of Beverly Perkins. Bizzell paid Perkins as a supporter and campaigner, and Bizzell assigned Perkins as a poll watcher at the precinct. Perkins, in turn, assigned other Bizzell poll watchers at the precinct.

 Police arrested Perkins sometime during the morning at the polling place after Democratic executive committee sub-committee on elections chairman Willie Earl Griffin swore out a warrant for disturbing the peace. Perkins later was released and returned to the east central Cleveland precinct and continued his poll watching.

 Griffin testified, and the special judge found, that Perkins violated the restriction on campaigning within 150 feet of the polling place, although the only pieces of literature Perkins might have had were brochures for a former gubernatorial candidate eliminated in the first primary.

 Several Rizzo supporters testified that Perkins told them the election had" already been wrapped up. "These and other Rizzo supporters testified that Perkins harassed and discouraged voters.

 2) Election Managers Howard Hughes and Margaret Little

 Perkins' conduct was not the sole irregularity alleged to have occurred at the east central Cleveland precinct. Two poll workers, Manager/Bailiff Howard Hughes and manager Margaret Little, violated ballot secrecy provisions according to Rizzo's witnesses.

 Two different people heard Hughes tell persons they could not have assistance despite their having requested it (BE 6), though this may have been because they were not blind, disabled or illiterate.

 Bizzell introduced testimony from several of his poll watchers and campaigners which contradicted Rizzo's witnesses. Bizzell's witnesses basically testified that they did not see Hughes or Mrs. Little looking in voting booths and minimized Perkins' wrongdoing.

 3) Candidate Lee C. Bizzell

 The evidence indisputably showed that Bizzell gave money to election manager Mrs. Little, but he later retrieved it. Rizzo, Orlando Blanks and presumably others saw Bizzell enter the east central Cleveland precinct at one point during the day and give $20 to Margaret Little. Bizzell made no attempt to conceal this gift and he and Mrs. Little testified it was only for refreshments for the poll workers. Blanks (the Mabus poll watcher), overheard that the $20 ...


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