*1 by holding Appellee pro day fixed law for contends that before also require of the dis visions 119.170 primary of elections.” KRS that statute appeal, missal of the since of dis litigants has cited and Each . summary by provides procedure which a cussed the recent decision Mann v. Cor may placed require his to be candidate name nett, 853, Vaughan v. primary the official ballot. That statute on Roberts, Ky. which 233 S.W. provides judge circuit make opinion. was discussed in the Mann procedure an con order such a subject appeal. clusive The statutory 118.080 is the basis KRS sole inapplicable the elec statute here since for by petition. nomination of candidates election, question general tion is a not a Vaughan decided, Roberts When v. was primary election. applicable then 1453 of the Ken- Section tucky permitted peti- filing Statutes Upon authority 118.130(3) of KRS tion primary. for nomination As Cornett, and Mann light after v. considered above, 118.130(3), noted which was KRS Vaughan Roberts, appears v. it that the enacted Vaughan after the decision in v. judgment of the circuit court was errone- Roberts, specifically now re- directs and ous. quires petitions of nomination made judgment entry is reversed for of a under KRS 118.080 shall be filed not less new consistent opinion. with the fifty-five days than day before the fixed by holding primary law elections All concur. (if petition required to be filed with Secretary State), and not less than forty-five days day before fixed law holding (when elections re-
quired to be filed county with the court
clerk). This court is of the view that the plain
mandate 118.130(3) is too any to admit of construction which would UPTON, Appellant, B. Charles permit a candidate’s name being placed by petition the ballot petition unless the Appellees. Denver al., timely filed, KNUCKLES et been prescribed by clearly statute. So implicit much is Appeals Kentucky. Court of Cornett, Mann question pre- as the was Sept. 21, sented there peti- as to- whether Mann’s tion timely, fifty-five days had been filed Dissenting Opinion Sept. 24, 1971. the primary. before This ruled that court petition timely filed. It would unnecessary have been for the court
grapple with question if, the timeliness here,
contended Anderson petition
could have been pri- filed even after the
mary. appellee appeal contends that
should be comply dismissed for failure to
with relating the rules taking appeal,
but there is no merit in this contention since appears appropriate that all steps
premises have been taken. *2 Rose, Williamsburg, Hubert F.
L.W. White, Denham, Middlesboro, Glenn W. appellant. McKeehan, Emby Williamsburg, A. Pineville, Wilson, appellees. S. James CULLEN, Commissioner. May
At the election Charles Upton candi- B. and Denver Knuckles were Republican nomination for dates for the for the Seventeenth Sena- State Senator torial The official canvass of District. winner, was the vote showed that Knuckles Upton’s a mar- receiving 3321 gin of In the #4 illegal by Pre- the votes are reason of con- County cinct in Bell Knuckles received 82 ditions under which the election was held. Upton 37, margin votes and of 45. Obviously, if all of the in a Upton brought instant suit to contest *3 particular precinct void, are declared to be sought he that the election. The relief was it can illegal be determined for whom the Straight the in Precinct all of votes Creek cast, votes every were because vote received be declared and the votes received void by each illegal candidate was an In vote. precinct each candidate in that be deducted such a case there the necessity for totals; respective the candidate’s from and complaint to each alleged name illegal voter Upton be the that declared winner on the voted, and how he proof because the will (he basis of the remaining votes then would votes, not be addressed to illegal individual votes). have a 22 winning margin general but to the course of the conduct of circuit dismissing court entered election. To the extent that Gregory v. complaint ground the the that it failed on Stubblefield, Ky., 689, 316 S.W.2d the and to state a claim on relief could be require cases cited therein the appealed granted. Upton has from that name the illegal alleged voters where it is
judgment. that for or affecting some reason reasons the election itself as in distinct from the apparently interpreted The circuit court votes, dividual the illegal, all votes were 569, Fugate, Ky., Watts v. 442 as S.W.2d they are overruled. holding precinct that a can never be thrown out, illegality in the conduct of the elec- If it should be determined that elec- therein, tion and the results of the election tion in Straight Creek Precinct was in sub- determined in the votes the remainder all, stance no election wherefore all of territory. Watts Fugate v. the votes cast therein should be considered does not so hold. void, question would remain whether result of the properly election could substance, In holding in Watts v. Fu- fairly be determined basis of gate simply percent was that the “20 rule” remaining portions votes in the of the elec- percent has reference to 20 of the total territory, tion or whether the entire elec- votes in the percent election and not to 20 tion should be declared void. It would precinct. of the votes in single The rule question seem that to that the answer should otherwise, by Watts, as clarified has no depend in on whether number of votes case, bearing on the instant because the precinct, the voided relation to the total rule has no application in determining election, number of cast in the votes whether certain are in illegal, votes fact so substantial that cannot nor in cases where it can be determined equal. considered to been free and have illegal for whom the were cast. 463, Ingram, Ky. See Wallbrecht v. 164 1022; Pendleton, 175 100 case, S.W. Hocker v. Upton the instant undertakes to 726, 250; Ky. Estridge, Lakes 39 v. assert that all of S.W. the votes 655, Ky. 294 S.W.2d 454. Here illegal—because Precinct 172 were void— principle per- as in is the same the “20 governing laws the conduct of elections enough merely cent not rule” —it violated were to such an extent that it must the number votes be sufficient to of voided be considered that there was in substance have affected the mathematical outcome precinct. no election He does at- election; tempt the voided votes say percent addition that at least 20 proportion must be a substantial of the total the votes illegal appears It votes cast in therefore the rest the election. votes therein out; principle, says should be he same but the same thrown that all of
825
percent—
substantiality
previous
adhered strict-
Our
cases have
measure of
—20
are
ly
that where
purpose.1
to the rule
may be used for
illegal
alleged
of each
attacked as
the name
by Upton in the in-
sought
The relief
for whom
illegal voter
the candidate
of relief that was
case is the kind
stant
set
his vote
cast must
forth
Keen, Ky., 444
in Thurman v.
envisioned
contrary
complaint, the
Rules to the
Civil
ap-
being
under
invocable
S.W.2d
Noplis,
Napier
notwithstanding.
See
v.
facts,
the kind that was in-
propriate
Ky.,
875; Hodges
Hodges,
318
S.W.2d
Turner,
such cases
Herald v.
voked
that one ex-
314
But with
S.W.2d 208.
Ky. 827,
more definite statement. 25, “(4-a) alleges May He that on 1971, Straight at foregoing County, considerations Creek Bell
With Upton’s complaint. mind we Precinct No. 4 the Election Laws of the examine Commonwealth, are as significant portions set out KRS 125.- 140, assisting relating to (2) Sub-section follows: persons voting, as fol- was violated alleges that “(4) Contestant-Plaintiff : lows 25, 1971, May Pre- 4, County, persons elec- (a) great Bell A number of cinct Number voting of Ken- with- tion of the Commonwealth allowed to be assisted laws disability prescribed making out an oath as to the tucky, as set out and 4, each; 118.330, and were Sub-sections by: violated persons great That a (b) number the mechanical vot- were allowed into illegal (a) Allowing unauthorized *5 by per- one ing accompanied machine polling place persons be inside the to son, first required when the law balloting. during of the two accompaniment and oath to By (b) allowing Election Officers 125.140(2) judges. That election KRS during polls bal- within the electioneer way bring a as to was violated in such loting. impropriety gross about such fraud and didates inside the to their ing. legal personnel (d) (c) By allowing converse polling place By support allowing unauthorized with or to unauthorized during the non-support polls during ballot- others electioneer concerning balloting. of can- persons and inside il- voided. [*] large proportion of election votes were cast done so the conduct impossible proper recipient, [*] illegally, in said [*] to determine so as to of the election and precinct [*] and therefore did charge thereby [*] should cast how them that [*] make were be to a violently and That such violations “(6) “That same so there was were in the 125.140(2) the effect and flagrantly as did have 118.330 KRS violated 4, Bell in said Precinct No. cast rendering all of the votes conduct wrongful County, and unlawful such race That and acts void. re that con- therein holding manner in the election was said election fairly and reason precinct did so be at the sults thereof ducted aforesaid cannot of cer intimidate, any degree influence, coerce wrongfully ably determined with declare should tainty, the conditions that this Court change and otherwise void, precinct said and did balloting precinct, this the election results proper pre- that processes adjudge of this cause the election and should to in the Senator’s held legal and unfair election was cinct to be so tainted May 1971.”2 voting at said in said make the results Race allegations However, paragraph allegations legal these 2. The set forth voter. (-a) (6) as un- the others with above would not of them- be considered picture dertaking overall to show an selves be sufficient to state claim elec- relief, they simply misconduct in- extensive because set forth finding illegal voting there that to warrant as to tion as dividual instances of precinct. election il- no valid whether a must name each of- illegal It that the com will be observed chised for acts Keen, Ky., plaint alleges squarely Thurman ficials. See laws in the conduct of the election S.W.2d 754. Straight Creek Precinct “so” violated reversed, with directions
as to cause the election therein to be void. conformity with proceedings for further The kinds of are set forth. The violations opinion. this deficiency might charged be general allegation that the of law violations MILLIKEN, P. J., and EDWARD C.
so extensive as to render the election void PALMORE, HILL, REED Jr., is a mere conclusion and is one war STEINFELD, JJ., concur. ranted drawn from properly specific violations enumerated. OSBORNE, part and dis- J., concurs problem distinguishing “facts” part. sents in by the designed
from “conclusions” was pleading to concept Civil Rule of “notice” if completely minimized eliminated. sitting. NEIKIRK, J., not should why problem
We see no reason be perpetuated in election cases OSBORNE, (dissenting). Judge continuing plead- ancient rules apply ing. myself compelled to dissent from I find in this case for several majority opinion Certainly, alleged, if Upton had as to reasons. each of the of statute vio- kinds lations, First, extent of the violations elec- right contest a practically was such as directly affect procedures to tion in state and the *6 every voter, complaint his would con- specifically set in contest are .be followed the gen- sidered think that his majority sufficient. We by in the out statute. Nowhere allegations, eral following enumerations the opinion mentioned. is statute occurred, of the kinds of violations that specifically Second, provides the statute equiv- saying not fall far short does the by a the that can be afforded remedies alent of the In contest above. the election election. primary court in a contest of a Jones, Ky., case of Pickard 243 S.W.2d comply with majority opinion does not said, p. pleading we the “Where a grants statutory in fact the limits and open construction, to meaning a will which remedy from that out different set reasonably support adopted it should be statute. rather than one which will defeat it.” is cov- primary The contest of elections It is our conclusion the al 122.010, by these stat- ered KRS etc. As legations Upton’s complaint are suf not utes contain much material which upon ficient to state a relief claim case, I particular will relevant to this granted. However, could be we caution form hereby in an abbreviated set them out merely irregularities evidence some quoting that material which relevant. of the kind in mentioned the will provides: 122.020 enough proof not for to sustain the claim relief. office proof flagrant, “Any be of such nomination to must candidate for extensive, pro- corrupt primary de a under the violations to election held 119.990, stroy for equality the fairness and of the elec visions of KRS 119.010 to equal Ky., Hodges Hodges, votes was cast tion. See whom number of 208; Smith, fifty of the votes percent Burchell v. to less than for flagrant in most the candidate S.W.2d 365. It is the cast for successful office, may contest kind of case that disfran- to such voters will be nomination candidate, right fairly the of the lence it cannot be who successful determined any election, other candidate nomination was the winner of the the court nomination, office, power adjudge to such to has the to that there has by filing petition By been no election. from in the circuit inference two, the number if can days court within from declare who fifteen election, day stating primary it the been the winner of the will course, do so. in to do it specific grounds upon the Of order relied * * * accurately contests, must be able to the determine who The contestee greater received number of valid votes days aft- shall file his answer within ten cast. er service of The answer summons. in grounds contain contest favor of my majority opinion In * * * grounds contestee but points. did misses on two The contestant * * * specifically must be set No out. specifically allege grounds upon ground by party either shall which he relied to contest the by filed or made more definite amend- opinion remanding in case itself expiration ment the time al- after does proceedings not restrict future filing orig- lowed this section for those authorized The ma- statute. * ** pleading. inal shall clerk jority opinion states: notify
immediately docket the cause “ * * * presiding judge that the of the court enough merely that the is not instituted, judge contest has been and the number of voided votes be sufficient proceed shall to a trial of the cause with- have affected the mathematical outcome days joined.” five issue election; after the of the addition voided proportion votes must be a substantial provides: KRS 122.030 cast in the election.” total votes party “Each to a contest instituted under diametrically opposed to the This rule is entitled, pro- KRS 122.020shall be statute, only requires that as the statute duction of evidence to be on the used fairly who court be unable to determine thereof, trial all allowed the remedies Therefore, the invalid won election. equity. trying cases of and in law required to only be number would the contest the court and de- shall hear rightful to make the outcome be sufficient questions termine all of law and fact court, done in so it has This doubt. *7 * * without the a jury, intervention of instances, re- completely many has other If it appears inspection from an doing so has and in the statute written whole record that there has been such many stated, on so restated and retracted fraud, intimidation, bribery or violence can read our rules that one various the conduct of that neither the election any intelligent conclu- cases and formulate contestant nor adjudged contestee can be concerning position sion nominated, fairly have been the court per- “20 The so-called laws in this state. may adjudge that there has no elec- been attempted wa- to be has cent rule” which tion, in which event the shall nomination rigidly so opinion was down in tered this vacant(Emphasis added). deemed Stubblefield, Ky., 316 Gregory applied in the United a member of things Three abundantly are made clear com- get his unable Congress was States from the foregoing 1. A con- statutes: His plaint this court. before upon testant must grounds state speci- greater in much allegations contained which he relies for the contest and these us. before ficity presently the one than cannot be amended after time filing pleading My analysis of the total expired. appears 2. If it to believe me leads jurisdiction from of this the record before the that be- laws court can only procedures four fraud, intimidation, that there are cause of or vio- bribery result that in reach this An action for recount I realize order to 1. be followed: long process judiciary have to a line of In this one would overrule the votes. they wrong. if the those cast and cases. I merely recounts think are counted, upon its it is face vote valid reasons, dissent. foregoing For the I only not. discretion it otherwise judiciary in this power of the within the
procedure or not is to determine whether it upon its for whom is valid face and
vote named An action to eliminate cast. 2. they ille- specified votes because court
gally type procedure In this cast. for whom may determine hear evidence JONES, Floyd Appellant, illegally cast and if it was the vote was de- will proceeding cast. In this the court those
duct from the total of the candidate DAVIESS EDUCATION OF BOARD OF illegally cast shown to have been COUNTY, Appellee. Kentucky, proceed- him and at the termination of the Kentucky. Appeals Court of ing received will declare candidate May 28, 1971. greater number Pro- of valid 3. votes. ceedings to declare nomination or election Rehearing Denied Oct. Corrupt because invalid violations Practices Act. Here deter-
ifmine there has been sufficient violation
of the Act to declare a nomination invalid.
4. Proceedings such now as the one we
have before us alleged where that be- it is fraud, intimidation, bribery
cause of
violence in the conduct of the election accordingly cannot be determined
which candidate largest received the num-
ber of instance, votes. if it cannot
be determined which candidate received largest votes, number of then the entire
election must be cast relief out.
authorized KRS 122.030is to declare the
nomination vacant. foregoing
For the reasons believe I
majority opinion clearly wrong. First dismissing
in not the complaint because *8 specifically
failure to allege the invalid
acts. Second in re- remanding the case
quiring the voided votes to be a substan- portion
tial total vote. think I enough that the invalid suffi- votes were rightful
cient to leave the doubt. outcome a statute When under which ap- Wiesman, Owensboro, for L. William acting declaring the limits the relief to pellant. vacant, certainly the court has nomination Holbrook, Holbrook, Sandidge, authority to of one Morton invalidate the vote Owensboro, appellee. Craig Hager, nominated. & party and declare one