CHAKA D. SMITH
CHARLES E. WEBSTER
OF JUDGMENT: 09/16/2015
COUNTY CIRCUIT COURT HON. M. JAMES CHANEY, JR.
ATTORNEY FOR APPELLANT: ELLIS TURNAGE
ATTORNEY FOR APPELLEE: CHARLES E. WEBSTER (PRO SE)
RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
This election contest arises from a November 4, 2014, general
election for the circuit judge seat in Mississippi's
eleventh circuit district, subdistrict 3 ("subdistrict
11-3 "). The special judge granted Charles Webster's
motion for summary judgment, finding no genuine issue of
material fact existed regarding which candidate received the
most votes in the election. Aggrieved, Chaka Smith appealed.
We affirm the trial judge's grant of summary judgment in
favor of Webster.
On November 4, 2014, a general election was held for the
subdistrict 11-3 circuit judge seat. Subdistrict 11-3
encompasses all voting precincts in Tunica County, as well as
certain statutorily designated voting precincts in both
Coahoma and Quitman Counties. Both Webster and Smith sought
the subdistrict 11-3 seat and, according to the final
certifications, Webster won the election by 886 votes.
Webster received 3, 255 votes, whereas Smith received 2, 369
votes. Of the total votes cast, 390 were cast by absentee
ballot. Webster received 296 of the absentee ballots and
Smith received the remaining 94.
After the election had been certified, Smith conducted
statutory examinations of the ballot boxes pursuant to
Mississippi Code Section 23-15-911(1). During the
examinations, Smith requested to photocopy or scan the
contents of the ballot boxes. The Coahoma, Quitman, and
Tunica County circuit clerks denied these requests.
On November 24, 2014, Smith filed a petition in the Quitman
County Circuit Court seeking both declaratory relief and to
contest the election. Smith sought declaratory relief as to
whether a candidate "has a legal right to make
photocopies of election documents prior to filing an election
contest" during a ballot-box examination under Section
23-15-911(1). Smith further alleged that this Court's
order adopting the Mississippi Rules of Civil Procedure
created unconstitutional power-sharing between the judicial
and legislative branches.
Smith also contested the election, alleging violations of
elections laws and procedures by election officials during
the November 4 election. One of the violations alleged by
Smith was that most of the absentee ballot applications and
envelopes were in violation of statutory provisions and were
commingled to the extent that illegal absentee ballots could
not be separated from legal absentee ballots. Webster filed
his answer and affirmative defenses, and Special Circuit
Judge M. James Chaney Jr. was designated to hear the contest.
On January 22, 2015, pursuant to Mississippi Rule of Civil
Procedure 34, Smith filed a motion for authority to examine,
inspect, and photocopy the contents of ballot boxes used in
the subdistrict 11-3 election. Judge Chaney held a hearing
and ultimately denied the motion. The special judge concluded
that Section 23-15-911(1) does not allow making copies of the
ballot-box contents. Further, Judge Chaney stated that Rule
81 limits the application of the Rules of Civil Procedure in
election contests and that, even if the rules did apply, Rule
34 had no application to Smith's request.
At the hearing, however, Judge Chaney gave Smith fifteen days
to submit a list of specific documents from the ballot boxes
that she wanted to copy. The trial judge reiterated that only
documents pertaining to specific voters should be requested.
The special judge also allowed Webster to file objections to
Smith's list. Smith submitted her list of documents,
Webster filed his objections, and the trial judge held
another hearing on the matter.
Brenda Wiggs, circuit clerk of Quitman County, and Charles
Oaks, circuit clerk of Coahoma County, testified at the
hearing. Wiggs and Oaks testified that the vast majority of
documents requested by Smith were either: (1) not located in
the ballot boxes or (2) not applicable because their counties
used direct-recording electronic voting
equipment. Many of Smith's requests asked for
documents applicable only in elections using optical mark
reading equipment. After hearing arguments, Judge Chaney
sustained Webster's objections to the documents that were
not located in the ballot box or that were inapplicable to
the election. As to the items requested that were located in
the ballot box, Judge Chaney determined that Smith's
request did not comply with the specificity requirement that
he previously had ordered. Smith's request sought
"each" absentee ballot application and
"each" absentee envelope rather than requesting the
absentee ballots and envelopes of specific voters.
Later in the pretrial proceedings, Smith designated William
Cooper and Talbot Brooks as "geocoding"
experts. In his declaration, Cooper claimed that
his geocoding analysis revealed that 1, 385 registered voters
in Coahoma and Quitman Counties were assigned to the wrong
subdistrict. Therefore, Smith alleged that nonresidents
of subdistrict 11-3 were able to vote in the November 4
election, while many residents of the subdistrict were
"left off of the pollbooks" and therefore unable to
vote in the election. As shown in Smith's First Amended
Petition, Smith asserted that 600 persons improperly cast
their ballots in the election or were unable to vote in the
election due to misassignment. On April 22, 2015, Webster
filed a motion to disallow Smith's expert witnesses,
arguing that the experts' findings were not relevant
and/or not reliable.
The trial judge granted Webster's motion. Judge Chaney
found that Brooks had provided no "investigation, report
or opinion relevant to th[e] election
contest." The special judge also found that
Cooper's geocoding analysis was based solely on Excel
files he received from Smith. No certification from the circuit
clerks, however, was provided to indicate that Cooper relied
upon accurate data or maps in calculating his results.
Therefore, Judge Chaney determined that Cooper's findings
were not reliable.
On August 28, 2015, Webster filed a combined motion for
summary judgment and memorandum of authorities. For purposes
of summary judgment, Webster accepted as true Smith's
assertion that 600 combined voters in Coahoma and Quitman
Counties illegally voted in the election or were unable to
vote in the election due to misassignment. Further, Webster
also accepted as true that all 390 absentee ballots were
invalid. Smith responded with a motion for partial summary
judgment, a motion for declaratory judgment, a motion for
reconsideration, and a response to Webster's motion for
summary judgment. The trial judge held a hearing and
ultimately granted Webster's motion for summary
The trial judge found that, even if he were to take
Smith's assertions as true, Webster still would win the
election. By subtracting 296 absentee votes from Webster,
Webster would have had 2, 959 votes. By subtracting 94
absentee votes from Smith, Smith would have had 2, 275 votes.
Thus, the difference between Smith and Webster without the
absentee votes would have been 684 votes. Even assuming 600
persons unlawfully voted in the election or were unable to
vote in the election and that all 600 would have voted for
Smith, the special judge concluded that Webster still would
have won by 84 votes.
The special judge also resolved Smith's request for
declaratory judgment, finding that this Court already has
determined that the judicial review process of election
contests does not create a separation of powers issue.
Lastly, in his order granting summary judgment, the special
judge dismissed all other outstanding motions as moot. On
October 16, 2015, Smith appealed. Smith raises six issues,
recited verbatim as follows:
1. The Standard of Review For a Trial Court's Denial of
Discovery Rights, the Exclusion of Expert Testimony and the
Grant of Summary Judgment
2.Whether A Candidate For Public Office Has The Right To Make
And Obtain Photocopies And/or Scan Of Election Materials and
Documents Used To Conduct An Election Within The Twelve (12)
Day Period Under Miss. Code Ann. 23-15-911 (1972)?
3.Whether The Provisions Of The Mississippi Supreme Court May
26, 1981 Order Adopting Rule 81(a)(4) But Leaving In Place
Procedural Statutes Constitute Power Sharing In Violation Of
The Separation of Powers Doctrine Or, Alternatively
Determining That The Trial Court Committed An Abuse Of
Discretion By Denying Smith's Discovery Rights Under The
4.Whether The Trial Court's Exclusion of Smith's
Experts By Order Filed May 20, 2015 Was An Abuse Of
5. Whether The Trial Court Committed Reversible Error By
Granting Summary Judgment To Webster In The Presence Of
Genuine Issues Of Material Fact?
6.Whether The Trial Judge Abused Its Discretion By Not Ruling
On Smith's Rule 54(b) Motion For Reconsideration?
The Standard of Review for a Trial Court's Denial of
Discovery Rights, the Exclusion of Expert ...