| By David Howell
More than a year after the Como Municipal Election last summer, a trial set to begin last Thursday was thrown out due to a technicality.
The petition, Judy Sumner versus the Como Democratic Executive Committee and Azria Lewers, was initially filed on June 23, 2005. Sumner did not comment as to whether the judge’s ruling would be appealed.
"In this business of making a decision, I don’t have a crystal ball," a special appointed Chancery Judge Aycock told the courtroom last Friday as she dismissed a petition filed by Judy Sumner against the Como Democratic Executive Committee and Azria Bobby Lewers. Her comment was made after she spent an hour in her chambers researching case precedent.
The dismissal was based on the second technicality that surfaced as the trial was set to begin.
In a bizarre twist of events, Judge Aycock initially dismissed the appeal Thursday morning after Cleveland attorney Ellis Turnage argued that no cash bond had been posted.
The cash bond is required, Turnage said, according to Section 23-15-927 of the Mississippi Code of 1972.
Sumner’s attorneys, Steven Pittman and Gerald Chatham failed to produce evidence that the $300 cash bond had been paid, prompting Judge Aycock to dismiss the case around 11 a.m. Thursday morning.
Shortly after Judge Aycock left the courthouse, the attorneys found the documentation in the court file and docket where they had posted the cash bond as required by law.
Chatham was able to reach the judge, who was returning to Tupelo, on her cell phone.
She decided that court would resume Friday morning at 8:30 so that Sumner’s attorney could present the evidence that the bond had been paid.
On the next Thursday, just before noon, Chatham reached Turnage, who was dining at the Windy City Grill, and told him that court was rescheduled for Friday morning.
"We were caught off guard," Chatham told Judge Aycock the Friday morning when court resumed. "It had been a year and a half since we had filed the bond." The bond was paid on the date that the petition was filed.
His explanation was an attempt to explain why they did not produce evidence that the cash bond had been posted when asked by Turnage the day before. Deputy Clerk Barbara Perkins testified for Sumner’s attorneys that the bond had been posted as court resumed Friday morning.
However, Turnage then argued in court that Sumner’s attorneys failed to "provide two or more sufficient sureties conditioned to pay all costs in case the petition was dismissed."
This requirement is also defined in Section 23-15-927. Like the bond, the sureties were described as statutory requirements by the judge.
Sumner’s attorneys then argued that the $300 cash bond was sufficient, and that the two sureties were not necessary in lieu of a cash bond.
"It doesn’t get any better than cash money," Chatham told the judge. Chatham also referenced a court case decided by the Mississippi Supreme Court, Jefferson versus the Mississippi State Highway Commission, where the court ruled that the cash bond was sufficient. The circumstances of the case were similar to Sumner’s case, but it was not an election contest.
Judge Aycock then ordered a recess, which lasted an hour, while she researched cases to find precedent from other cases.
In her final ruling, Judge Aycock dismissed the petition, citing specific election contest cases.
Lewers was represented by Jackson attorney, Sanford Earl Knott of Sanford Knott and Associates.
Sumner was attempting to prove that she actually received more votes than Lewers.
Her petition filed in Circuit Court states she initially led the Como mayor’s runoff election on May 17, 2005, by a count of 294 to 291. The next day, on May 18, there were 13 affidavit ballots to be counted by the Como Democratic Executive Committee, plus there also appeared to be an additional eight absentee ballots according to Sumner’s petition.
Of the eight absentee ballots, each candidate received two votes each, making the total 296 for Sumner and 293 for Lewers.
Of the 13 affidavit ballots that were counted by the Como Democratic Executive Committee, two were rejected, four went to Lewers and six went to Sumner, making the total count 302 for Sumner and 297 for Lewers, Sumner’s petition continues.
At this time, the affidavit ballot of Stevie Bonner was disputed because he is a convicted felon. This ballot was ultimately counted, bringing the total count to 302 for Sumner and 298 for Lewers.
On May 24, Sumner’s petition continues, the Como Democratic Executive Committee met again and counted 12 of 19 absentee ballots that were rejected on May 17, 2005. Lewers received all 12 rejected ballots, giving him a total of 310 votes to Sumner’s 302. The ballots had been rejected by poll managers on the night of the runoff election and was witnessed by Jim Nelson with the Secretary of State’s office.
Sumner’s petition also alleges that, on May 24, that it was obvious that the ballot boxes had been opened and tampered with.