State judge throws out election lawsuit appeal

The Kentucky Court of Appeals threw out a Whitley County election contest appeal Tuesday citing procedural grounds, and ruled that the inclusion of one candidate in the appeal was “frivolous,” and ordered damages paid to the candidate.
“We are pleased that the courts acted in such an expeditious manner, and pleased that the courts agreed with our interpretation of the requirements of existing law. Absolutely, we are ecstatic that the court dismissed it,” said Tim Crawford, an attorney who is representing defendant Kay Schwartz, who won the Republican Primary for Whitley County Clerk.
Evelyn McCullah, one of the plaintiff’s, said she doesn’t know yet whether the group will attempt to appeal the case further.
“I’m not really surprised by the dismissal, but we are not going to stop fighting for fair elections,” said McCullah, who ran unsuccessfully in the Republican Primary for Whitley County Sheriff.
Attorneys for Dewayne Bunch, H.D. Moses, McCullah, Ronnie Faulkner, Will Leach, Mark C. Lawson, and Arnold Young filed a joint notice of appeal July 24 in Whitley Circuit Court.
Their lawsuit alleged that on May 16, numerous voters and candidates complained about the voting machines not working properly during the primary election.
The notice of appeal listed as defendants in the case: the Kentucky Board of Elections, Whitley County Board of Elections, Charlie Siler, Pat White Jr., Lawrence Hodge, Ken Mobley, Troy Sharp, Schwartz, and unknown defendants.
Cain dismissed the lawsuit on July 13, citing numerous procedural problems, and a failure by the defendants to state any specific grounds for the election contest.
The ruling by Justice Rick Johnson notes that various defendants in the lawsuit had moved to dismiss the appeal because of a failure by the plaintiffs to timely take all steps to initiate the appeal within 10 days of the judgment being issued.
The ruling notes that since judgment in the case was entered on July 13, the notice of appeal, which was filed July 24, was timely.
The supercedes bond wasn’t posted until Aug. 2, and the record was not filed in the Kentucky Court of Appeals until Aug. 7.
Special Judge William Cain didn’t set the supercedes, or appeal bond, until a hearing held on July 31.
“In responding to the motion to dismiss, the appellants detail some difficulties in completing these two required steps,” Johnson wrote in his ruling. “However, the appellants offer no explanation of the failure to move the Court of Appeals for additional time before the original time expired on July 24.
“In fact, the appellants did not move for additional time until they filed their response to the motions to dismiss on Aug. 16. The steps required by KRS 120.075 are mandatory and jurisdictional.
“The appellants cite no authority that would permit this court to authorize additional time for initiating an appeal in an election contest unless the motion was made before the original time had expired.”
Crawford said he was pleased that the Court of Appeals agreed with the defendant’s interpretation of the primary election statutes were correct that all three steps had to be filed within 10 days of the ruling.
“The court of appeals also agreed with our interpretation of previous case law that the courts do not have the jurisdiction to extend that time period without good cause shown,” Crawford said. “The court felt the plaintiffs had not shown good cause.”
Crawford noted that the case could still be appealed further to the Kentucky Supreme Court.
While the appeal to the Court of Appeals is automatic, it would be up to the Kentucky Supreme Court to decide whether it would accept an appeal in the case.

Sanctions granted
Johnson also found in the ruling that naming White, who won the Republican Primary for Judge-Executive, as an appellee was “frivolous on the part of counsel for the appellant.”
He ordered attorney Leroy Gilbert Jr. to pay $300 in damages to White within 30 days of the order.
The ruling notes that none of White’s opponents in the primary participated in the lawsuit or the appeal, and that opposing counsel agreed during a circuit court hearing to dismiss him from the lawsuit.
“In responding to the motion, counsel recites various reasons for failing to actually dismiss White from the circuit court action, but does not explain why counsel decided to include White as an appellee,” the ruling states.
White said he was pleased with the court’s ruling.
“All along I said my inclusion in the lawsuit was unjustified and the court agreed with me,” he said Tuesday afternoon.

Election complaints
Several candidates, who filed the lawsuit, reported getting calls from individuals who said they pressed the button by one candidate’s name only to have the light beside another candidate’s name light up.
Some, but not all of the candidates went as far as to allege that the voting machines were “rigged.”
The lawsuit further listed other claims regarding the timeliness of the vote tabulations, and the reliability of the voting machines.
“Election results were not reported to the public in a timely manner, being more than two hours after polls closed before the precincts were reported and some results were not reported until the morning of May 17, 2006,” the lawsuit states.
“Winners were announced before less than half the precincts were in. Precinct results were reported as several precincts combined instead of individually. Absentee ballots were reported inaccurately,” the lawsuit claims.
Gilbert could not be reached for comment.