Collins v. Ammerman | Cases | Westlaw

This is an appeal from the judgment of the 71st Judicial District Court, Harrison County, at Marshall, Texas, in a contest of a primary election nomination authorized by Election Code Art. 13.30 (1967), V.A.T.S. A Democratic Party Primary Election was held in Harrison County on May 2, 1970. The parties to this appeal were the only candidates in the primary for selection as the Democratic Party nominee for the office of County Judge of Harrison County in the 1970 General Election. The canvass made of the Primary Election returns showed James S. Collins received 4,057 votes and Jim Ammerman received 4,073 votes.

This excerpt from the Judgment filed in the District Court shows the disposition made of the contest by the trial court, towit:

‘It is therefore ORDERED, ADJUDGED AND DECREED as follows:

When the authority of the trial court to decide the contest is considered in connection with its duty to exercise all of the powers of a district court to ascertain the true and correct result of the election^* free from fraud, irregularity and mistake, it is arguable that by implication the trial court is empowered to nullify the results of the balloting in a primary election when such course is necessary to a final determination of an issue before it. No implication is to be found in the quoted sections, the remainder or Article 13.30, or elsewhere in the Election Code, authorizing a judgment of the trial court that falls short of deciding a contest. Election Code Art. 9.15 (1967) empowers a court to void an election under certain circumstances, but the Article governs general and special elections and has no application to a party primary. At most, the arguable implication of Article 13.30 is no more than that the trial court may, after hearing, find that the contest can not be determined without re-submission of the candidates to the balloting of party voters and order balloting for that purpose under the court's supervision, so that the contest may be finally decided by the court.

By appropriate pleadings, Jim Ammerman petitioned the trial court to declare void certain votes case by electors in a precinct other than that of their residence. The trial court voided the ballots of certain voters in this category, but declined to open the ballot boxes and make a recount on the basis of his order. The trial judge's opinion, made a part of the judgment, confirms this procedure, and the record shows that Ammerman was prevented from offering *894 into evidence the result of a recount in which such void ballots would be disregarded. The number of ballots involved was sufficient to be decisive in determining the election contest. Ammerman's rights in this respect were curtailed without fault on his part.

But for this being a Primary Election contest case, little more would need to be said. However, since General Election deadlines must be met, judgment here and in the trial court must be reconciled with laws pertaining to such elections. The dates for holding party primaries are fixed by statutory law, as is the date of the General Election. In this instance the time in which a contest might be heard and decided is confined to the period between May 2, 1970, and the beginning of absentee voting at the November 3, 1970, General Election. This case well illustrates the maze of dates and deadlines a primary contestant encounters and makes understandable the pressure and difficulties under which the parties and the court must operate. The contest was instituted May 14, 1970. Trial commenced May 26, and Judgment was signed and entered July 27. Exercising authority vested solely in him, the trial judge fixed the time for filing the appeal record in this court as September 21st; this was undoubtedly because of the voluminous evidence introduced in the trial. A statement of fact containing over four thousand typewritten pages, together with a transcript of over two hundred pages were duly filed. This court allowed the parties two weeks for preparation of written briefs, necessitating that oral argument and submission of the case be set not earlier than October 6th. The date prescribed by law for holding the next General Election is November 3, 1970. The statutes require absentee balloting to begin twenty days prior to the General Election. To comply, the ballots must be printed and delivered to appropriate election officials for absentee voting not later than October 13, 1970. Finally, this court's decision and judgment is hereby rendered and entered this day, October 6, 1970.

On the basis of the immense record in this case and the time consumed in the previous trial, it is only remotely probable that the case may be retried and the contest decided within the four or five days period available to the trial court before the General Election ballots must be printed and delivered to absentee election officials. However, by relaxing the rules of procedure, pleading and evidence and securing such agreements and stipulations as the parties will make it is possible in theory that a retrial may be completed. In view of this bare possibility, and the demands of Article 13.30, Sec. (12), which forbids Courts of Civil Appeals to dismiss an appeal as moot because of the possibility of the interference with the printing of official ballots, it is ordered that this case be reversed and remanded to the trial court for retrial. If, in the period of time available, the trial court becomes satisfied that a just trial and decision can not be had without interference with the printing of the official ballots, the trial court will have no choice but to dismiss the action as moot. In an emergency such as this, when only a relatively small number of ballots for use in absentee balloting is required, this court is of the opinion that if energetic and good faith effort is made a printer may be found who can supply such ballots upon relatively short notice; perhaps in a matter of hours.

No rehearing will be entertained, the mandate of this court shall issue instanter, and all statutes, law and rules that would or might deny or delay immediate effect to *895 the judgment of this court are relaxed and suspended so far as this court has authority to do so. It being the intention of this court's judgment that it shall have immediate effect, and that no statute, law or rule it is authorized to relax, suspend or disregard will nullify immediate effectiveness. The Clerk of this court shall without delay and at the earliest practical time make all reasonable effort to supply the trial court with a copy of this opinion, this court's judgment and mandate, together with other evidence of the action of this court that is customarily furnished the trial court when a case is reversed and remanded.