Court rules in favor of Cain on ballot

The Choctaw Plaindealer

Mayor Dick Cain will remain on the General Election ballot for mayor of the Town of Ackerman by the ruling of Special Judge Edward Prisock.

In the second Choctaw County Circuit Court hearing, May 29, Prisock ruled, "Cain should be on ballot and he does have more than 50 signatures."

His decision came after hearing testimony from Dick Cain, his wife Lynn Cain and Thomas Vastrick, forensic document examiner.

Tim Rogers, mayoral candidate, previously challenged Cain's qualification to the Ackerman Election Commission basing that Cain did not have the required 50 valid signatures. The Election Commission ruled that Cain did have the required signatures. Rogers then filed a judicial review appeal and Special Judge Prisock dismissed the case, May 15, because he felt that it was out of Circuit Court jurisdiction to rule on the election and the statutory criteria was not met.

Rogers filed an appeal to the Mississippi Supreme Court and they reversed Prisock's decision, May 22, stating he "erroneously applied Section 23-15-963 to this case."

The Supreme Court ordered the hearing back to Choctaw County Circuit Court.

At the beginning of the second Choctaw County Circuit Court hearing, May 29, Judge Prisock overruled Tom Jones, Cain's attorney, and Rodney Favor, Town of Ackerman attorney, motion to dismiss the case.

"Statute doesn't apply to municipal elections. Supreme Court says Circuit Court does have jurisdiction. Motion overruled," said Prisock.

He then went over both parties witness list, swore in potential witnesses then the witnesses were escorted to a holding room until called.

Cain's qualifying petition was admitted as exhibit to court and the numbers of names on the petition in question were discussed.

Jones said the Ackerman Election Commission disqualified 11 from the petition and Judge Prisock agreed those 11 were disqualified.

In an opening statement, Paul Watkins, Rogers' attorney, said the core of the problem is Cain's election petition has irregularities that are not clear in Mississippi law. He cited Mississippi Code 97-21-51 stating the code says petition must be personally signed.

Watkins' said 28 of the signatures were not personally signed or was signed by someone that signed their name more than once.

Jones' said, in his opening statement, that the general conduct is that a family member signed for a family member.

"No law in Mississippi says signatures be excluded of person singing another name," said Jones.

Watkins called Cain as witness to testify about the signatures. In his testimony, Cain said this wife, Lynn Cain, solicited all but two of the signatures on his petition.

"Lynn volunteered to help. I told her we need 50 names," said Cain after a series of questions.

Responding to questions, Cain said he and Lynn never discussed who could or could not sign the petition. He also said after the petition was signed, they never discussed if anyone signed for another person or not.

On cross examination by Jones, Cain said he became aware of the Mississippi Code stating a petition must be personally signed, when Rogers challenged his petition.

Next, Lynn Cain was called to testify. In her testimony she said she solicited the signatures.

"Yes, got 67 of them. I was off work that day and said I would do it," said Lynn.

Watkins went through the signatures in question, one by one, asking Lynn who signed each name and if she asked them to sign another person's name. Lynn said repeatedly, that she never asked anyone to sign another person's name and that she did not say whether it was allowed or not.

Jones, on cross-examination, asked Lynn if there was anything deceptive about obtaining the signatures.

"They are all friends. I could have gotten 500 signatures. To be honest, I've signed petitions like this before," said Lynn.

The next witness was Tom Vastrick, forensic document examiner from Florida. After some questions, Judge Prisock allowed, Vastrick to testify as an expert witness. Vastrick has served as a forensic document examiner for 32 years, of which 17 are in private practice. He said part of his job is to examine signatures on documents with the exception of fingerprints.

In his testimony, Vastrick said he was asked by Rogers to do a cross comparison of signatures and determine if common signatures. He said he found four sets of common authorship with two or three in each group. Watkins went through every signature (28) in question.

Jones questioned Vastrick about a couple letters in a few of the names that were different. Vastrick said sometimes letters look alike or different because of natural difference in handwriting.

Jones asked Vastrick if he "do the best, you could with materials given" and he responded yes.

Favor then renewed his motion to dismiss the case asking "Is the court going to rule if someone can sign for someone else."

Watkins argued about the way the signatures were obtained.

"The Mayor and his agent wanted the signatures. They either knew, should have known or approved of family members signing names. All are in violation of Mississippi law," said Watkins.

He continued, "Whole petition gathered in violation of Mississippi law. Ignorance of law doesn't stop the law....Mississippi statute says you cannot get false signatures and use them."

Jones said the argument in question is having enough signatures and said there is no authority in Mississippi to dismiss the entire petition.

"Court should see the truthful and creditability of witnesses," said Jones.

Judge Prisock then said the motions are sustained.

"Cain should be on ballot and he does have more than 50 signatures."

Later that day, May 29, Rogers filed an appeal to the Mississippi Supreme Court asking for an emergency hearing and a stay of the election.

As of press time, the Supreme Court had not ruled on this appeal.