BRIEF OF APPELLANT, DIMP POWELL

Transcription

1 E-Filed Document Feb :35: EC SCT Pages: 43 IN THE SUPREME COURT OF MISSISSIPPI No TS DIMP POWELL, V. MUNICIPAL ELECTION COMMISSION, APPELLANT APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HUMPHREYS COUNTY, MISSISSIPPI CASE NO.: BRIEF OF APPELLANT, DIMP POWELL Andrew N. Alexander III (MSB #1310) Lake Tindall LLP Post Office Box 918 Greenville, MS Telephone: (662) Facsimile: (662) Kate Margolis (MSB #99625) Bradley Arant Boult Cummings LLP Post Office Box 1789 Jackson, MS Telephone: (601) Facsimile: (601) Attorneys for Appellant Dimp Powell ORAL ARGUMENT REQUESTED

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO: 2013-TS DIMP POWELL, V. MUNICIPAL ELECTION COMMISSION, APPELLANT APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HUMPHREYS COUNTY, MISSISSIPPI CASE NO.: CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: Powell; 1. Mr. Dimp Powell, Petitioner/Appellant; 2. Municipal Election Commission of the Town of Isola, Respondent/Appellee; 3. Ms. Bobbie Miller; 4. Municipal Clerk of the Town of Isola; 5. Humphreys County Democratic Executive Committee; 6. Andrew N. Alexander III and Lake Tindall LLP, counsel for Dimp Powell; 7. Kate Margolis and Bradley Arant Boult Cummings LLP, counsel for Dimp 8. Samuel L. Begley, Esq. and the Begley Law Firm PLLC, counsel for the Municipal Election Commission of the Town of Isola; and 9. The Honorable Jannie M. Lewis, Circuit Court Judge.

3 So certified, this 17th day of February, s/kate Margolis Kate Margolis BRADLEY ARANT BOULT CUMMINGS LLP One Jackson Place 188 E. Capitol Street, Suite 400 Jackson, MS Telephone: Facsimile: One of the Attorneys for Dimp Powell

4 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... i I. STATEMENT OF THE ISSUE...1 II. STATEMENT OF THE CASE...1 A. Course of Proceedings and Disposition Below...1 B. Statement of Facts...1 III. SUMMARY OF THE ARGUMENT...6 IV. ARGUMENT...7 A. This Court has jurisdiction to hear this appeal....7 B. Standard of review...12 C. In order to have a party nominee, a political party must have an executive committee in place by the qualifying deadline for candidates The plain language of Miss. Code Ann requires that a temporary committee be in place within thirty (30) days of the qualifying deadline Miss. Code Ann presumes the existence of a committee prior to the qualifying deadline The legislative history of supports the conclusion that the county committee must decide to act as the temporary municipal committee by the qualifying deadline The circuit court misinterpreted by placing an unwarranted burden on municipal clerks and holding that a potential candidate has a right to be a party nominee when no executive committee exists on the qualifying deadline Substantial compliance with the deadline in is insufficient Where only one valid candidate remains due to noncompliance with a mandatory election requirement, that candidate should be declared the winner V. CONCLUSION i -

5 TABLE OF AUTHORITIES CASES Page Alias v. City of Oxford, 70 So. 3d 1114 (Miss. Ct. App. 2010)... 7, 11 Allgood v. Bradford, 473 So. 2d 402 (Miss. 1985) Allred v. Webb, 641 So. 2d 1218 (Miss. 1994) Barbour v. State ex rel. Hood, 974 So. 2d 232 (Miss. 2008)... 2 Bowen v. DeSoto County Bd. of Sup'rs, 852 So. 2d 21 (Miss. 2003) Bowling v. Madison County Bd. of Sup'rs, 724 So. 2d 431 (Miss. Ct. App. 1998)... 10, 11 Boyd v. Tishomingo County Democratic Executive Comm., 912 So. 2d 124 (Miss. 2005) Buffington v. Miss. State Tax Comm'n, 43 So. 3d 450 (Miss. 2010) Chinn v. Cousins, 27 So. 2d 882 (Miss. 1946) City of Jackson v. McPherson, 130 So. 287 (Miss. 1930)... 8 City of Jackson v. Rebuild Am., Inc., 77 So. 3d 1105 (Miss. Ct. App. 2011) City of Jackson v. United Water Servs., Inc., 47 So. 3d 1160 (Miss. 2010) City of Madison v. Shanks, 793 So. 2d 576 (Miss. 2000) City of Natchez v. Sullivan, 612 So. 2d 1087 (Miss. 1992) Cook v. Board of Sup'rs of Lowndes County, 571 So. 2d 932 (Miss.1990)... 10, 11

6 Davis v. AG, 935 So. 2d 856 (Miss. 2006) Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d 711 (Miss. 2002)... 10, 11, 12 Gambrill v. Gulf States Creosoting Co., 62 So. 2d 772 (Miss. 1953) (citation omitted)... 13, 19 Harpole v. Kemper County Democratic Executive Comm., 908 So. 2d 129 (Miss. 2005) Hinds County Democratic Executive Comm. v. Muirhead, 259 So. 2d 692 (Miss. 1972)... 8 In re Mun. Boundaries of City of Southaven, 864 So. 2d 912 (Miss. 2003) In re Wilbourn, 590 So. 2d 1381 (Miss. 1991)... 8 Latham v. Molpus, 642 So. 2d 1340 (Miss. 1994) Lewis v. Griffith, 664 So. 2d 177 (Miss. 1995)... 18, 25 Martin v. State, 501 So. 2d 1124 (Miss. 1987) McFadden v. State, 580 So. 2d 1210 (Miss. 1991) McIntosh v. Sanders, 831 So. 2d 1111 (Miss. 2002)... 10, 28 McKee v. City of Starkville, 97 So. 3d 97 (Miss. Ct. App. 2012) Meeks v. Tallahatchie County, 513 So.2d 563 (Miss.1987) Miller v. Meeks, 762 So. 2d 302 (Miss. 2000) Mississippi State and School Employees' Life and Health Plan v. KCC, Inc., 108 So. 3d 932 (Miss. 2013)... 12,13,19,20 Mississippians Educating for Smart Justice, Inc. v. Mississippi Dept. of Corrections, 98 So. 3d 459 (Miss. 2012) ii -

7 Newell v. Jones County, 731 So. 2d 580 (Miss. 1999) Noxubee County Democratic Executive Comm. v. Russell, 443 So. 2d 1191 (Miss. 1983) Powe v. Forrest County Election Comm n, 163 So. 2d 656 (Miss. 1964)... 8 Price v. Clark, 21 So. 3d 509 (Miss. 2009)... 14, 15 Quitman County v. Turner, 18 So. 2d 122 (Miss. 1944)... 12, 13 Rayner v. Barbour, 47 So. 3d 128 (Miss. 2010)... 12, 20 Rice v. Dillon, 19 So. 2d 918 (Miss. 1944)... 26, 27 Robertson v. Texas Oil Co., 106 So. 449 (Miss. 1925) Robinson v. Utilities Comm'n of City of Columbus, 487 So. 2d 827 (Miss. 1986)... 9, 10 Rogers v. Holder, 636 So. 2d 645 (Miss. 1994) Smith v. Hollins, 905 So. 2d 1267 (Miss. 2005) Thompson v. Jones, 17 So. 3d 524 (Miss. 2008)... 2, 28 Tilghman v. City of Louisville, 874 So. 2d 1025 (Miss. Ct. App. 2004) Town of Terry v. Smith, 48 So. 3d 507 (Miss. 2010)... 8, 9 Trustmark Nat. Bank v. Roxco Ltd., 82 So. 3d 573 (Miss. 2011) Tunica County v. Gray, 13 So. 3d 826 (Miss. 2009) Wallace v. Election Comm'n of Town of Edwards, 118 So. 3d 568 (Miss. 2013) iii -

8 Wilkinson County Bd. of Sup'rs v. Quality Farms, Inc., 767 So.2d 1007 (Miss. 2000) Wood v. State ex rel. Gillespie, 142 So. 747 (Miss. 1932) STATUTES Miss. Code Ann Miss. Code Ann Miss. Code Ann , 10, 11 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann , 27 Miss. Code Ann Miss. Code Ann passim Miss. Code Ann passim Miss. Code Ann , 16, 21 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code ,16,19 - iv -

9 OTHER AUTHORITIES Legislative History of HB Miss. Att'y Gen. Op., , 2001 WL , Howell (February 28, 2001) Miss. Att'y Gen. Op., , 2001 WL , Bowman (March 16, 2001)... 20, 21, 24 Miss. Att'y Gen. Op., , 2005 WL , Gilless, at *1 (April 1, 2005) Miss. Att'y Gen. Op., , 2012 WL , Martin (July 13, 2012) Miss. Att'y Gen. Op., , 2012 WL , Chiles (August 10, 2012) Miss. Att'y Gen. Op., , 2013 WL , Ashford (April 22, 2013)... passim - v -

10 I. STATEMENT OF THE ISSUE Whether the Circuit Court s May 30, 2013 bench ruling and July 11, 2013 Order correctly held that Bobbie Miller was properly designated as a Democratic nominee for mayor of Isola on the general election ballot when no temporary municipal Democratic executive committee existed on the qualifying deadline for candidates? II. STATEMENT OF THE CASE A. COURSE OF PROCEEDINGS AND DISPOSITION BELOW This case concerns the proper interpretation of Mississippi s elections statutes and the overriding statutory goal of protecting the integrity of the elections process. Prior to the general election for municipal offices in Isola, Appellant Dimp Powell filed an emergency complaint regarding the propriety of the listing of Ms. Bobbie Miller as the Democratic nominee for mayor of Isola on the ballot. Following a hearing, the Humphreys County Circuit Court held that Miller had a legal right to be designated as the Democratic nominee for mayor, and Miller was ultimately elected. B. STATEMENT OF FACTS On January 23, 2013, Bobbie Miller filed her statement of intent to run for mayor of Isola as a Democrat, and the $10 qualifying fee, with the municipal clerk, Ashekia Ashford. Tr. at 15, Miller never formally advised anyone from the Democratic party that she was seeking to become the Democratic nominee, but after filing her qualifying papers, she let everybody know. Tr. at The deadline to file qualification papers to run in the primary election as a party candidate or in the general election as an independent was March 8, Tr. at 16. Then- 1 The record consists of a hearing transcript with pages numbered and a record with pages numbered The transcript is referenced herein as Tr. ; the record as R ; and Record Excerpts as RE.

11 current mayor, Appellant Dimp Powell, filed qualification papers to run as an independent prior to the deadline. Tr. at Ashford, a lifelong resident of Isola, had been municipal clerk for [a]bout two years, but had no prior elections training or experience. Tr. at 14, 32-33, 46. No one from the county Democratic executive committee ever asked Ashford if anyone had filed qualifying papers to run as a Democrat or informed her whether a municipal executive committee existed. Tr. at 51. Ashford assumed Miller would be able to run as a Democrat. Tr. at 30-32, 35. On or about March 6, 2013, Ashford printed the Mississippi Secretary of State s Elections Guide 2 and noticed the instruction that qualifying fees should not be paid in cash. Tr. at 35. Because Miller had paid the $10 qualifying fee in cash, Ashford called and asked her to exchange the $10 in cash for a $10 money order. Tr. at 35-37, 76. Ashford was unaware that she was supposed to forward Miller s qualifying papers and fee to the municipal Democratic executive committee. Tr. at 49. In fact, no municipal Democratic executive committee existed. 3 Tr. at 16, 57. After the qualifying deadline had passed, municipal election commissioner McArthur Miller came to Ashford s office to collect qualifying papers, and Ashford asked him where 2 The Secretary of State is Mississippi s chief elections officer. Barbour v. State ex rel. Hood, 974 So. 2d 232, 235 n.4 (Miss. 2008). 3 Party primaries had not been held in Isola for years. Tr. at The Court may take judicial notice of certified election results located on the Secretary of State s website showing that all candidates in Isola ran as independents in 2009 and Thompson v. Jones, 17 So. 3d 524, 528 (Miss. 2008) (citing Miss. R. Evid. 201). See Exhibit A, retrieved from sos.state.ms.us/elections/2005/results/general.asp

12 she should send the qualifying fees; he advised that the fees be sent to the Secretary of State. 4 Tr. at 18-19, 34, 54. Ashford did so. Tr. at 54. On March 12, 2013, the Secretary of State s office received Miller s qualifying papers and fee. R. 39. In a letter dated March 14, 2013, Kimberly P. Turner, Assistant Secretary of State for the Elections Division, 5 advised that Miller could not qualify as a Democratic candidate for mayor because there was no municipal Democratic executive committee in place. R The letter stated: Absent a municipal executive committee, the municipal clerk cannot accept the statement of interest of a candidate seeking to qualify as a party nominee in a primary election, and cannot accept the $10.00 filing fee required by statute. **** Because the Town of Isola has no municipal executive committee, and will not conduct a primary election, Ms. Miller s Statement of Intent should not have been accepted by your office. Ms. Miller should be advised by your office that no primary election will be held by the Town of Isola by reason of the absence of a Democratic Municipal Executive Committee, and her $10.00 fee should be returned to her. Unfortunately, Ms. Miller cannot be a candidate for Mayor since the qualifying deadline for all municipal candidates was last Friday, March 8, 2013; she is unable to qualify now as an independent candidate for Mayor. R In the letter, Turner quoted an opinion of the Attorney General directed to Billy B. Bowman, dated March 16, 2001, stating that a party executive committee must be in place on the qualifying deadline so the municipal clerk can promptly turn the qualifying fees and statements of intent of the candidates over to said committee in accordance with 4 Election Commissioner Miller testified that he told Ashford to send the qualifying papers to the Secretary of State, but did not advise her about what to do with the qualifying fees. Tr. at Miller testified that at the time, I wasn t certified. I didn t know my duties, either. That s like asking somebody on the street. Id. at Assistant Secretaries of State have power and authority under the direction and supervision of the secretary of state to perform all of the duties required by law of that officer. Miss. Code Ann

13 Section (3) (Supp. 2000). R. 40. Turner also returned the qualifying fee to Ashford. 6 R. 39. Miller learned of Turner s conclusion that Miller could not run for mayor when she received a copy of Turner s letter from Powell and Ashford. Tr. at 39-41, Immediately after receiving Turner s letter, Miller contacted the chair of the Humphreys County Democratic Executive Committee, Joyce McNair. Tr. at On March 22, 2013, fourteen days after the qualifying deadline, McNair informed Ashford by letter that the Humphreys County Democratic Executive Committee had certified Miller as the Democratic nominee for mayor of Isola, citing Miss. Code Ann Tr. at 16, 23; R. 41. Prior to March 22, Ashford had received no communications from the county executive committee. Tr. at 25. Miller was the only purported Democratic party candidate in the municipal elections. 8 Tr. at 30. After receiving McNair s letter, Ashford requested an opinion from the Mississippi Attorney General s Office regarding how to proceed. Tr. at 24. On April 22, 2013, Special Assistant Attorney General Phil Carter opined that the decision by the County Democratic Committee to act as the temporary municipal executive committee was not timely because it had not made the decision to act until after the qualifying deadline. R On May 24, 2013, ten days before the general election, the majority of the threeperson Municipal Election Commission decided to list Miller as the Democratic candidate on 6 The record indicates that Powell was also interested in running as a Democrat instead of as an independent. Tr. at 54. Ashford had also forwarded Powell s $10 check made payable to the Municipal Executive Committee to the Secretary of State, even though independent candidates are not required to pay a fee. R Ashford also provided copies of Turner s letter to the municipal election commissioners. Tr. at See Exhibit B, retrieved from Thompson, 17 So. 3d at

14 the general election ballot. 9 Tr. at 25-26; R. 46. The majority concluded that the lack of a municipal executive committee could have been rectified prior to the qualifying deadline if the municipal clerk had sent the qualifying papers to the county executive committee, rather than the Secretary of State. R. 46. On May 28, 2013, Powell filed an Emergency Complaint requesting that the circuit court order the Municipal Election Commission to remove Miller s name from the general election ballot or prohibit votes for Miller from being counted. R On May 30, 2013, the circuit court held an evidentiary hearing and issued its ruling from the bench. Tr. at 1, The court held that the problem lay with the municipal clerk, reasoning that under Miss. Code Ann , the clerk should ascertain whether or not there is a legitimate committee before accepting the statement or the filing fees. Tr. at 119; RE 6. The court appeared to acknowledge that the statute clearly states that [the temporary municipal executive committee] has to be [formed] before the qualifying deadline, but found Miller had no knowledge that anything else needed to be done. Tr. at ; RE 6-7. The court held that Ms. Miller has done what [wa]s legally required of her to become a candidate for mayor of Isola, and was thus entitled to appear on the ballot. Tr. at 120; RE 7. On June 4, 2013, Miller was elected as mayor of Isola in the general election. Tr. at 30; see Exh. B hereto. On June 11, 2013, the court issued its formal Order and Judgment of Dismissal. R ; RE 2-3. The court reiterated that [b]y filing her qualifying papers in a timely fashion Ms. Miller did all she was required to do to become a candidate and thus should not 9 The Municipal Election Commission had postponed qualifying the candidates and authorizing the printing of the ballot in order for the two uncertified election commissioners, Mr. Miller and Ms. Tiney Anderson, to receive their required training in an emergency session at the Secretary of State s office. Tr. at 44-45, 61, 64, 68,

15 be held liable for the clerk s failure to act promptly. R. 54; RE 3. The court s order stated that once Ms. Miller was apprised of the circumstances, she took immediate steps to be qualified as a candidate by the Humphreys County Democratic Executive Committee. Id. Powell timely filed this appeal. R. 47, 56. III. SUMMARY OF THE ARGUMENT The lower court s order turns the statutory elections procedures on their head. The question here is not whether Miller did what she was required to do to become a party candidate; rather, the question is whether the Democratic party did what it was required to do within the statutory time permitted in order to have a primary. The circuit court misinterpreted Miss. Code Ann by placing an unwarranted burden on municipal clerks to prompt political parties to decide whether or not to form a temporary executive committee and by holding that Miller had a legal right to be the Democratic nominee for mayor even though no executive committee existed on the qualifying deadline for candidates. Because political parties are given wide discretion to decide whether or not to form a temporary committee, neither Miller nor any other potential candidate has a right to be a party s nominee when no municipal executive committee exists on the qualifying deadline. The plain language of Miss. Code Ann requires that a temporary executive committee must be in existence by the qualifying deadline. Because the statutory directive is mandatory rather than directory, substantial compliance with the requirement is insufficient. The requirement is mandatory because failure to comply would create significant practical problems that could impede the carrying out of primary elections and affect the integrity of the elections process including disenfranchising voters who are - 6 -

16 entitled to vote by absentee ballot and would allow political parties to treat potential candidates for party nomination in an arbitrary fashion, raising due process and equal protection concerns. Because the Democratic party s nomination of Miller did not comply with mandatory statutory procedures, this Court should reverse the circuit court s ruling and declare Powell the winner of the mayoral election. IV. ARGUMENT A. THIS COURT HAS JURISDICTION TO HEAR THIS APPEAL. After learning of the Municipal Election Commission s decision to list Miller on the general election ballot as the Democratic party s nominee, Powell filed an emergency complaint for a writ of mandamus or alternatively for a writ of prohibition with the circuit court for removal of Miller s name as contrary to law. A writ of mandamus was the proper procedure for relief here. However, because the case law on this subject is not entirely clear, before discussing the merits, Powell first addresses the Court s jurisdiction. 10 The Court provided specific authority for the use of mandamus shortly before Powell filed his emergency complaint. In Wallace v. Election Comm'n of Town of Edwards, 118 So. 3d 568, 569 (Miss. 2013) (en banc), a mayoral candidate seeking to have the election commission include his name on the general election ballot had filed a writ of mandamus. The Court held, as a matter of due process, that the election commission should have given Wallace a hearing. Id. at Here, the election commission s decision to list Miller as the Democratic nominee on the general election ballot exceeded its statutory authority because it was contrary to law. While a court cannot use the writ to intrude into an election commission s discretionary 10 Jurisdiction is a question of law; thus, this Court's review is de novo. Alias v. City of Oxford, 70 So. 3d 1114, 1115 (Miss. Ct. App. 2010) (en banc) (citations omitted)

17 functions, the court can, where necessary, prohibit it from exceeding its statutory authority in some respect. In re Wilbourn, 590 So. 2d 1381, 1358 (Miss. 1991) (en banc) (quoting Hinds County Democratic Executive Comm. v. Muirhead, 259 So. 2d 692, 695 (Miss. 1972)). An election commission s discretion extends only to issues of fact, not law. See City of Jackson v. McPherson, 130 So. 287, 288 (Miss. 1930) (stating that writ is not intended to direct an inferior tribunal to decide an issue of fact in a particular way ) (emphasis added). See also Powe v. Forrest County Election Comm n, 163 So. 2d 656, 658 (Miss. 1964) (stating that election commission s decisions regarding whether party nominees are qualified are final as to questions of fact, but not as to matters of law ). In Powe, 163 So. 2d 656, 657 (Miss. 1964), the election commission had rejected a party nominee because it found the nominee was not a qualified elector. The Court held the candidate s use of the writ in that case was improper because the elections statutes expressly provided procedures for a hearing and an appeal regarding voter registration issues. 11 Id. at Here, there is no clear procedure for a hearing and an appeal in the election statutes. The Court has acknowledged that the elections statutes fail to prescribe what to do when the question is whether a party executive committee has been properly formed. In Town of Terry v. Smith, 48 So. 3d 507, 508 (Miss. 2010), the election commission had refused to include a purported Democratic nominee s name on the general election ballot based on its determination that the municipal executive committee had been improperly 11 In Muirhead, 259 So. 2d at , the Court upheld the decision of the Hinds County Democratic Executive Committee to exclude Muirhead s name from the Democratic primary ballot based on violation of a statute relating to misrepresentation as to party membership. The Court indicated that the appropriate appeal process was the same as that outlined in Powe, even though the applicable statutes there appear to deal only with voter registration issues. Id. at 694. The statutes cited in Powe were the precursors of Miss. Code Ann , , and

18 formed. 12 The Court upheld the trial court s conclusion that the appropriate vehicle for remedy was not Miss. Code Ann , regarding contests of a primary candidate s qualifications (nor Miss. Code Ann , regarding post-election contests, nor Miss. Code Ann or , which provide for writs of certiorari), but rather Miss. Code Ann , based on the plain language of the statute. Id. at This statute provides, in pertinent part: Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities. Miss. Code Ann (emphasis added). Other cases show that does not apply because municipal election commissions are not municipal authorities. In Robinson v. Utilities Comm'n of City of Columbus, 487 So. 2d 827, 829 (Miss. 1986), the Court interpreted municipal authority in to mean the mayor and board of aldermen, city council, or other such form of government, and held that since the Utilities Commission of Columbus [wa]s not a municipal authority, did not apply. See City of Madison v. Shanks, 793 So. 2d 576, 580 (Miss. 2000) (quoting Robinson, 487 So. 2d at 829); Bowling v. Madison County Bd. of Sup'rs, 724 So. 2d 431, (Miss. Ct. App. 1998) (recounting history of statute and noting that original enactment applied to county governing board known as board of 12 The opinion does not elaborate on the basis for the election commission s conclusion

19 police ). See also Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d 711, 718 n.4 (Miss. 2002) (en banc) (noting that to the extent that the Legislature has circumscribed the power of the courts to review the legislative acts of municipalities and counties [under ], we must adhere to its mandated limitations ) (emphasis added). In McIntosh v. Sanders, 831 So. 2d 1111, 1115 (Miss. 2002), the Court held that did not apply to the decision that a candidate for election commissioner was not qualified when that decision was made by a county board of supervisors acting as the election commission, rather than as the board of supervisors. Under these authorities, like the Utilities Commission in Robinson, the Isola Municipal Election Commission is not a municipal authority. 13 A further layer of complexity is added when no underlying hearing is held. In Falco Lime, 836 So. 2d at 718, the Court interpreted its prior opinion in Cook v. Board of Sup'rs of Lowndes County, 571 So. 2d 932, 934 (Miss.1990), as stand[ing] for the proposition that where no hearing is held, the action does not really proceed under at all. In the case at bar, there was no hearing by the election commission. However, if the Court decides that , rather than mandamus, was the proper procedure here, it is clear that Powell has sufficiently complied with its requirements. See Bowling, 724 So. 2d at 436 (parsing out statute s requirements). Substance should prevail over form regardless of the label placed on the documents filed with the circuit court. Newell v. Jones County, 731 So. 2d 580, 583 (Miss. 1999) (citing Cook, 571 So. 2d at 934). There is no question that Powell s appeal was timely, 14 as it was filed four days after the election commission s decision. Cook, 571 So. 2d at 934; Bowling, 724 So. 2d at Notably, the Humphreys County Democratic Executive Committee is clearly not a municipal authority. 14 The timeliness of an appeal is jurisdictional. Alias, 70 So. 3d at 1115 (citations omitted)

20 The purpose of the bill of exceptions is to serve[ ] as the record, Bowling, 724 So. 2d at 437, and it is sufficient as long as it includes the pertinent and important facts and documents on which the circuit court could intelligently act. 15 McKee v. City of Starkville, 97 So. 3d 97, 100 (Miss. Ct. App. 2012) (en banc) (quoting Wilkinson County Bd. of Sup'rs v. Quality Farms, Inc., 767 So.2d 1007, 1012 (Miss. 2000)). Here, there was sufficient information in the complaint and the exhibits to the complaint for the circuit court to intelligently act. Under , the circuit court sits only as an appellate court, and is usually prohibited from considering evidence outside the bill of exceptions. Falco Lime, 836 So. 2d at 716. See City of Jackson v. United Water Servs., Inc., 47 So. 3d 1160, 1161 (Miss. 2010) (en banc) (stating that a circuit court sitting as an appellate court [i]s charged with determining whether the decision of the board of supervisors, or municipal authorities [i]s arbitrary, capricious, or contrary to applicable law ). However, where there is no hearing below, a de novo hearing by the circuit court may be appropriate. Falco Lime, 836 So. 2d at (discussing Cook, 571 So. 2d at ). The Falco Lime Court ultimately held that a discussion among the mayor and alderman on the record about the issue at hand was an appropriate hearing. Id. at 718. The Court held that even though the circuit court in that case should not have conducted a de novo hearing, it was harmless error because the information in the bill of exceptions sufficed for the circuit court to have reached the same conclusion. Id. at (citation omitted). Similarly, here, should the Court hold that the circuit court erred in considering additional evidence, it was harmless error because the information submitted by Powell served as a sufficient record for the court to rule. 15 While an appeal must be filed within ten days, the bill of exceptions may be filed or amended within a reasonable time thereafter. Tilghman v. City of Louisville, 874 So. 2d 1025, 1026 (Miss. Ct. App. 2004) (citing Bowen v. DeSoto County Bd. of Sup'rs, 852 So. 2d 21, 23 (Miss. 2003))

21 B. STANDARD OF REVIEW This Court is the ultimate authority on the interpretation of Mississippi s statutes. Mississippi State and School Employees' Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 939 (Miss. 2013) (internal quotation marks and citation omitted). A lower court s interpretation of a statute is therefore reviewed de novo. Mississippians Educating for Smart Justice, Inc. v. Mississippi Dept. of Corrections, 98 So. 3d 459, 461 (Miss. 2012); Trustmark Nat. Bank v. Roxco Ltd., 82 So. 3d 573, 577 (Miss. 2011). The goal of statutory interpretation is a determination of the intent of the Legislature. Smart Justice, 98 So. 3d at 461 (internal quotation marks and citation omitted). Where a statute is clear and unambiguous, no further statutory construction is necessary and the statute should be given its plain meaning. Miller v. Meeks, 762 So. 2d 302, 305 (Miss. 2000) (en banc) (quoting City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)). See Rayner v. Barbour, 47 So. 3d 128, 131 (Miss. 2010). When interpreting statutes in pari material (on the same subject) all of the relevant statutes must be taken into consideration, and a determination of legislative intent must be made from the statutes as a whole. Martin v. State, 501 So. 2d 1124, 1127 (Miss. 1987) (citing Allgood v. Bradford, 473 So. 2d 402 (Miss. 1985)). Further, the Court should consider all possible repercussions and consequences. Allred v. Webb, 641 So. 2d 1218, 1222 (Miss. 1994) (citing Quitman County v. Turner, 18 So. 2d 122, 126 (Miss. 1944)). The Court should adopt the real meaning of the statute, though such interpretation may be beyond or within, wider or narrower, than the mere letter of the statute. Gambrill v. Gulf States Creosoting Co., 62 So. 2d 772, 775 (Miss. 1953) (citation omitted). Unthought of results must be avoided if possible especially if injustice follows, and [an] unwise purpose will not be imputed to the Legislature when a reasonable construction is possible. Id. (citation omitted). See Quitman County v. Turner,

22 18 So. 2d 122, 124 (Miss. 1944) (en banc) (noting Court s duty to support a construction which would purge the legislative purpose of any invalidity, absurdity, or unjust equality ). Indeed, [c]ourts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature. KCC, 108 So. 3d at 936 (internal quotation marks and citation omitted). If, however, the language used is capable of more than one meaning, then the purpose and spirit of the statute, as gathered from all of its provisions, and its history, must be ascertained and declared by the court. Robertson v. Texas Oil Co., 106 So. 449, 449 (Miss. 1925). See Buffington v. Miss. State Tax Comm'n, 43 So. 3d 450, 454 (Miss. 2010) (en banc) (stating that statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue ) (citation omitted). The Court may look not only to the language used but also to [the statute s] historical background, its subject matter, and the purposes and objects to be accomplished. Tunica County v. Gray, 13 So. 3d 826, 830 (Miss. 2009) (en banc) (quoting Davis v. AG, 935 So. 2d 856, 868 (Miss. 2006)). C. IN ORDER TO HAVE A PARTY NOMINEE, A POLITICAL PARTY MUST HAVE AN EXECUTIVE COMMITTEE IN PLACE BY THE QUALIFYING DEADLINE FOR CANDIDATES. 1. The plain language of Miss. Code Ann requires that a temporary committee be in place within thirty (30) days of the qualifying deadline. The statute that addresses temporary municipal party executive committees is Miss. Code Ann The statute provides that if a political party does not have a party executive committee for a municipality and desires to select a temporary executive committee, the party may do so within thirty (30) days of the qualifying deadline for candidates for municipal office, and outlines the procedure for doing so: If there be any political party, or parties, in any municipality which shall not have a party executive committee for such municipality, such political party,

23 or parties, shall within thirty (30) days of the date for which a candidate for a municipal office is required to qualify in that municipality select qualified electors of that municipality and of that party's political faith to serve on a temporary municipal executive committee until members of a municipal executive committee are elected at the next regular election for executive committees. The chairman of the county executive committee of the party desiring to select a temporary municipal executive committee shall call, upon petition of five (5) or more members of that political faith, a mass meeting of the qualified electors of their political faith who reside in such municipality to meet at some convenient place within such municipality, at a time to be designated in the call, and at such mass convention the members of that political faith shall select a temporary municipal executive committee which shall serve until members of a municipal executive committee are elected at the next regular election for executive committees. The public shall be given notice of such mass meeting as provided in Section The chairman of the county executive committee shall authorize the call within five (5) calendar days of receipt of the petition. If the chairman of the county executive committee is either incapacitated, unavailable or nonresponsive and does not authorize the mass call within five (5) calendar days of receipt of the petition, any elected officer of the county executive committee may authorize the call within five (5) calendar days. If no elected officer of the county executive committee acts to approve such petition after an additional five (5) calendar days from the date, the chair of the county executive committee not taking action as provided by this section, the petitioners shall be authorized to produce the call themselves. Miss. Code Ann (1) (emphasis added). The Legislature s use of the word shall in the first sentence of the statute shall within thirty (30) days of demonstrates that the deadline to select a temporary committee is mandatory. See City of Jackson v. Rebuild Am., Inc., 77 So. 3d 1105, 1112 (Miss. Ct. App. 2011) (citing McFadden v. State, 580 So. 2d 1210, 1215 (Miss. 1991)). Simply stated, shall is mandatory, while may is discretionary. Price v. Clark, 21 So. 3d 509, 519 (Miss. 2009) (internal quotation marks and citation omitted). The language the party desiring to select a temporary municipal executive committee in the second sentence of paragraph (1) of the statute makes clear that the selection of a temporary committee by the party is not mandatory, but left to the discretion of party members. See In re Mun. Boundaries of City of Southaven, 864 So. 2d 16 This section provides for publication of notice of the meeting once a week for three weeks prior to the meeting date in a newspaper circulating in the municipality. Miss. Code Ann

24 912, (Miss. 2003) (noting use of word desire in statute was permissive language lead[ing] to the conclusion that the power to annex is a discretionary act ). The second paragraph of the statute permits the party s county executive committee to serve as the temporary committee when no municipal executive committee is selected or otherwise formed before an election : If no municipal executive committee is selected or otherwise formed before an election the county executive committee may serve as the temporary municipal executive committee and exercise all of the duties of the municipal executive committee for the municipal election. After a county executive committee has fulfilled its duties as the temporary municipal executive committee, as soon as practicable thereafter, the county executive committee shall select a municipal executive committee no later than before the next municipal election. Miss. Code Ann (2) (emphasis added). Unlike shall, the word may denotes the action is permissive. Price, 21 So. 3d at 519. The Legislature s choice of the word may in the first sentence of the second paragraph of the statute thus clarifies that the county executive committee has the discretion whether or not to act as the temporary committee. The statute further instructs that this substitution, if elected, should not be a routine occurrence, providing that after serving as the temporary committee, the county executive committee shall select a [permanent] municipal executive committee (2) (emphasis added). The statutory rules for forming a temporary county executive committee for county or state primary elections are substantially identical to the rules for forming a temporary municipal executive committee. Section provides: (1) If there be any political party, or parties, in any county which shall not have a party executive committee for such county, such political party, or parties, shall within thirty (30) days of the date for which a candidate for a county office is required to qualify in such county, select qualified electors of that county and of that party's political faith to serve on a temporary county executive committee until members of a county executive committee are elected at the next regular election for executive committees. The temporary

25 county executive committee shall be selected in the following manner: The chairman of the state executive committee of the party desiring to select a temporary county executive committee, upon petition of five (5) or more members of that political faith, shall call a mass meeting of the qualified electors of their political faith who reside in such county to meet at some convenient place within such county, at a time to be designated in the call, and at such mass convention the members of that political faith shall select a temporary county executive committee which shall serve until members of a county executive committee are elected at the next regular election for executive committees. The public shall be given notice of such mass meeting as provided in subsection (4) of this section. The chairman of the state executive committee shall authorize the call within five (5) calendar days of receipt of the petition. If the chairman of the state executive committee is either incapacitated, unavailable or nonresponsive and does not authorize the mass call within five (5) calendar days of receipt of the petition, any elected officer of the state executive committee may authorize the call within five (5) calendar days. If no elected officer of the state executive committee acts to approve such petition after an additional five (5) calendar days from the date, the chair of the state executive committee not taking action as provided by this section, the petitioners shall be authorized to produce the call themselves. (2) If no county executive committee is selected or otherwise formed before an election, the state executive committee may serve as the temporary county executive committee and exercise all of the duties of the county executive committee for the county election. After a state executive committee has fulfilled its duties as the temporary county executive committee, as soon as practicable thereafter, the state executive committee shall select a county executive committee no later than before the next county election. Miss. Code Ann (emphasis added). The statute, effective July 26, 2011, includes a publication requirement mirroring When paragraphs (1) and (2) of and are read together as a whole, several things become clear. First, when a political party has no executive committee in a municipality or county, members of the party have the discretion whether or not to call for the formation of a temporary committee, and if they do not i.e., no committee is selected or otherwise formed, (2) and (2) the county or state executive committee, respectively, have the discretion whether or not to act as the temporary committee. Second, because the statute grants this discretion to the parties, there is no right to run as a party candidate in the absence of a permanent or temporary committee on

26 the qualifying deadline. 17 Third, because the first paragraph mandates formation of the temporary committee within thirty (30) days of the qualifying deadline, it logically follows that the decision of a county or state executive committee whether or not to act as the temporary committee must also be made by the qualifying deadline. It is likewise clear that the language before an election in paragraph (2) of both and means prior to the qualifying deadline. If before an election is interpreted to mean 30 days after the qualifying deadline or to include anytime between the day after the qualifying deadline and the day before the election, two substantial problems affecting the integrity of the nomination and election process arise: (1) it becomes difficult, if not impossible, for the election to be conducted in accordance with the statutory procedures for carrying out elections; and (2) the county (or state) committee could use its statutory discretion and decide not to act as the temporary committee, leaving candidates who filed qualifying papers and fees with no legal recourse. 18 See Miss. Att'y Gen. Op., , 2013 WL , Ashford, at **4-5 (April 22, 2013). As the Attorney General stated: It is our opinion that the phrase before an election means that a county executive committee must assume the duties of serving as the temporary municipal committee prior to all critical stages of conducting a municipal primary e.g. the printing of the ballots, the appointment and training of pollworkers and the deadline for candidates to file their statements of intent and pay the filing fees. Obviously, if that phrase is interpreted to mean before election day, it would lead to the absurd conclusion that a county executive committee could announce the day before a primary that it will act as the temporary municipal executive committee. This would be totally unworkable if two or more individuals had filed their statements of intent and paid their filing fees for the same office prior to the qualifying deadline when no 17 There is no question that in order for a particular political party to have nominees whose names are to be placed on the municipal general election ballot, there must be either a permanent municipal executive committee representing the party in question or a temporary committee representing said party. Miss. Att'y Gen. Op , 2005 WL , Gilless, at *1 (April 1, 2005). If a political party has no executive committee in place there can be no party nominees for that party. Id. 18 The negative impact on potential candidates is further discussed in subsection

27 legitimate committee was in place. It would be impossible to conduct the primary with no ballots and no trained pollworkers to conduct the primary. Ashford op., at 4. Ensuring there is enough time for the executive committee to execute all of its legal duties related to the mechanics of conducting a primary election such as the printing of the ballots and the appointment and training of pollworkers is of vital importance to the integrity of the election process. Interpreting before an election to allow a county executive committee to step in after the qualifying deadline would be totally unworkable where more than one person filed qualifying papers and fees. Id. Significantly, such an interpretation could disenfranchise voters statutorily entitled to vote by absentee ballot. Indeed, here, if both candidates had sought to run for the Democratic nomination and were certified on March 22, absentee ballots could not have been made available to voters fortyfive days before the primary election on May 7, a violation of Miss. Code Ann Id. at *4. The county committee s failure to act prior to the qualifying deadline is more than a mere technical irregularit[y], Lewis v. Griffith, 664 So. 2d 177 (Miss. 1995) (citation omitted), or a trivial lapse[ ], Chinn v. Cousins, 27 So. 2d 882, 883 (Miss. 1946). If it was permissible for the Humphreys County Executive Committee to decide to act as the temporary municipal committee after the qualifying deadline had passed, the question then becomes how long after the qualifying deadline is permissible? Is it always permissible for the county committee to make the decision to act as the municipal committee after the qualifying deadline when only one person is seeking a party nomination? 19 Decisions would have to be made on a case by case basis, leading to a lack of uniformity of treatment of 19 This scenario would create due process and equal protection concerns because where only one candidate seeks the party nomination, the county committee would still have statutory discretion whether or not to act as the temporary committee and might act to nominate some candidates, but not others, in an arbitrary manner. See discussion in Section 4., supra

28 candidates and potentially opening the door to political mischief. This lack of guidance and slippery slope would set a terrible precedent that would dim the public s and candidates perception of the integrity of the nominations and elections process and likely lead to increased litigation. To allow county or state executive committees to decide whether to act as the temporary committee after the qualifying deadline would ascribe an unwise purpose to and and result in an impractical and absurd application of the statutes. Gambrill, 62 So. 2d at 775; KCC, 108 So. 3d at 936. Powell s construction of the statutes, advanced by both the Secretary of State s Office and Attorney General s Office, supports an orderly elections process; any other construction would lead to chaos. 2. Miss. Code Ann presumes the existence of a committee prior to the qualifying deadline. The interpretation of as mandating formation of a temporary committee by the qualifying deadline is supported by a related statute, Miss. Code Ann , which presumes the existence of a committee prior to the qualifying deadline. The statute provides: (1) Nominations for all municipal officers which are elective shall be made at a primary election, or elections, to be held in the manner prescribed by law. All persons desiring to be candidates for the nomination in the primary elections shall first pay Ten Dollars ($10.00) to the clerk of the municipality, at least sixty (60) days prior to the first primary election, no later than 5:00 p.m. on such deadline day. (2) The fee paid pursuant to subsection (1) of this section shall be accompanied by a written statement containing the name and address of the candidate, the party with which he is affiliated, and the office for which he is a candidate. (3) The clerk shall promptly receipt the payment, stating the office for which the person making the payment is running and the political party with which such person is affiliated. The clerk shall keep an itemized account in detail showing the time and date of the receipt of such payment received by him, from whom such payment was received, the party with which such person is affiliated and for what office the person paying the fee is a candidate. The clerk shall promptly supply all necessary information and pay over all fees