BEFORE DAN LEE, P.J., PRATHER AND PITTMAN, JJ.
PRATHER, JUSTICE, FOR THE COURT:
This case challenges the validity of the Democratic primary election for the office of Supervisor of District One of Stone County, Mississippi. Although the unofficial tally on election night gave the incumbent a four vote margin, Dana Parsons, son of the chairman of the Stone County Democratic Executive Committee, was declared the winner of the election by a margin of six votes by the Stone County Democratic Executive Committee on the official counting.
Freddie Pearson, the incumbent supervisor, requested judicial review of the election contest. The appointed Special Tribunal ruled that Freddie Pearson was the Democratic nominee for the office of Supervisor, District One.
Dana Parsons appealed, assigning as error the following:
(1) Whether the trial court erred when it allowed the amendment of the petition for judicial review filed in this cause.
(2) Whether the trial court erred when it assumed jurisdiction of this matter and allowed it to proceed, although it had not been filed "forthwith" pursuant to statute.
(3) Whether the trial court erred when it failed to proceed to the discharge of its designated duty at the earliest possible date, resulting in this matter being tried on seven days from October 28, 1987, through December 2, 1987, in violation of statutory dictate.
(4) Whether the trial court erred when it disqualified the appellant's and appellee's attorneys from the trial of this matter.
(5) Whether the trial court allegedly failed to conduct a trial de novo as required by statute.
(6) Whether the trial court erred when, after ruling that no further evidence would be heard concerning the proceedings before the Stone County Democratic Executive Committee, it reversed its ruling and advised counsel for both sides that it, on its own motion, intended to subpoena all members of the Executive Committee.
(7) Whether the trial court erred in disqualifying ten (10) alleged qualified votes in District One, Stone County, Mississippi, and in counting three (3) votes of individuals who allegedly were not qualified voters.
(8) Whether the trial court erred in finding that the actions taken by the Board of Supervisors of Stone County, Mississippi, in conducting a partial purging and adjustment of poll books, were permissible actions.
(9) Whether the trial court erred in permitting alleged personal bias and prejudice against the father of the appellant to permeate these proceedings, depriving the appellant of the fair trial de novo to which he was entitled.
(10) Whether the trial court erred in violating Rule 15 of the Rules of Discipline for the Mississippi State Bar when the court publicly condemned a member of the Bar not
involved either as an attorney or litigant in the present action and in the attorney's absence.
This election contest arises in the aftermath of a hurried redistricting of Stone County, Mississippi, ordered by the United States District Court in mid June, which ordered the August primaries to be held as redistricted. On election night, August 25, 1987, the incumbent candidate Freddie Pearson tallied four votes more than Dana Parsons. Two nights later on August 27, 1987, the Stone County Democratic Executive Committee, chaired by Jack Parsons, the father of candidate Dana Parsons, certified Dana Parsons as the nominee with 445 votes to 439 for Freddie Pearson due to the allowance of contested challenged ballots, which yielded a 10 vote change.
Freddie Pearson contested the election and filed a written motion that Chairman Jack Parsons recuse himself. On September 22, 1987, Freddie Pearson appeared with counsel and witnesses before the Stone County Democratic Executive Committee which granted him a limited 15 minute time period within which to present his case. The recusal motion was refused to be considered by the chairman for the reason that Freddie Pearson was not a member of the committee.
Following Pearson's presentation of his challenge to the election results, and nominee Parsons' response, Chairman Jack Parsons called for a vote from the Executive Committee. He framed the issue to be voted on as whether there was "fraud" or "no fraud." At the conclusion of the vote, Chairman Jack Parsons announced there was a tie vote, meaning "no fraud" , and the election would stand. However, conflicting testimony was given before the tribunal supporting the contention that 8 committee members voted that there was "fraud" , while 7 voted there was "no fraud."
On October 5, 1987, Freddie Pearson filed with the Circuit Court of Stone County a petition for judicial review of the election contest, with two certificates from attorneys that they had made an independent investigation into the election contest and found the protest and petition should be sustained.
The Chief Justice of this Court appointed a Special Tribunal consisting of Chancellor Robert H. Oswald and the Election Commissioners of Stone County.
The Tribunal entered its final judgment on December 4,
1987, ruling that Freddie Pearson was the legal Democratic nominee for the office of Supervisor, District One. *fn1 He further stated that the Court was referring the chairman's conduct to the Mississippi State Bar. From this judgment Dana Parsons appealed.
DID THE TRIAL COURT ERR WHEN IT ALLOWED AMENDMENT OF THE PETITION FOR JUDICIAL REVIEW?
The issue of this assignment of error challenges the jurisdiction of the special tribunal to act. The statutory authority under which a petition for judicial review of an election contest is initiated is Miss. Code Ann. 23-15-927 (Supp. 1988) which provides in part:
But such petition for a judicial review shall not be filed unless it bear [sic] the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted . . . .
After having given a certificate to contestant Pearson for use with Pearson's petition, one of the certifying attorneys, Charles Burhorn, petitioned the court to withdraw his certificate because he had made no independent investigation. Rather than allowing Mr. Burhorn to withdraw his certificate, the trial court permitted Freddie Pearson to amend his petition for judicial review by attaching another certificate. Dana Parsons contends that the tribunal lost jurisdiction upon the petition of Burhorn to withdraw his certificate, and further, Parsons contends that amendments are not permitted under the judicial review statute and that pursuant to Miss. R. Civ. P. 81 (a)(4), election contests are not procedurally governed by the rules of Civil Procedure. The rules permit amendment, but the above statute does not. He contends, therefore, the court erroneously allowed an amendment to the petition. Dana Parsons' contention is incorrect. M.R.C.P. 81 (a) clearly states that the procedural rules have limited applicability to election contests and would defer to the statute where the rules conflict with the statutory scheme.
Rule 81 (a)(4), Miss. R. Civ. P., makes clear
that practice and procedure in election contests are governed by statute in the first instance and that the Mississippi Rules of Civil Procedure control only to the extent that our legislature has remained silent.
Shannon v. Henson, 499 So. 2d 758, 762 (Miss. 1986). As there is nothing in the statutes conflicting with the rules respecting amendments, in the present procedural context the Mississippi Rules of Civil Procedure apply.
Rule 15 (a), Miss. R. Civ. P., provides in part that "[a] party may amend his pleading as a matter of course at any time before a responsive pleading is served . . . ." Rule 15 (c), Miss. R. Civ. P., provides in part that:
Whenever the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
The trial court, therefore, did not err when it allowed the petition for judicial review to be amended. The jurisdictional challenge of this appeal fails.
DID THE TRIAL COURT ERR IN DETERMINING THAT THE PETITION FOR REVIEW WAS FILED "FORTHWITH" ?
Miss. Code Ann. 23-15-927 (Supp. 1988) provides in pertinent part:
When and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, . . . (Emphasis added).
The decision of the Stone County Democratic Executive Committee was rendered September 22, 1987. The petition for Judicial Review of ...