BRIEF OF APPELLEE, MUNICIPAL ELECTION COMMISSION OF THE TOWN OF ISOLA, MISSISSIPPI

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1 E-Filed Document Apr :28: EC SCT Pages: 39 IN THE SUPREME COURT OF MISSISSIPPI No ES DIMP POWELL, APPELLANT V. MUNICIPAL ELECTION COMMISSION OF THE TOWN OF ISOLA, MISSISSIPPI, APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HUMPHREYS COUNTY, MISSISSIPPI CASE NO.: BRIEF OF APPELLEE, MUNICIPAL ELECTION COMMISSION OF THE TOWN OF ISOLA, MISSISSIPPI Samuel L. Begley (MSB #2385) Begley Law Firm, PLLC P. O. Box 287 Jackson, MS Telephone: (601) Facsimile: (601) Attorney for Appellee Municipal Election Commission of the Town of Isola, Mississippi ORAL ARGUMENT REQUESTED

2 IN THE SUPREME COURT OF MISSISSIPPI No TS DIMP POWELL, APPELLANT V. MUNICIPAL ELECTION COMMISSION OF THE TOWN OF ISOLA, MISSISSIPPI, APPELLEE 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: 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, Mississippi 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 Powell; 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. i

3 So certified, this the 23 rd day of April, s/samuel Lee Begley Samuel L. Begley (M SB #2385) Begley Law Firm, PLLC ii

4 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. v STATEMENT OF THE ISSUES..1 I. STATEMENT REGARDING ORAL ARGUMENT...1 II. STATEMENT OF THE CASE.1 A. COURSE OF PROCEEDINGS AND DISPOSITION BELOW.1 B. STATEMENT OF THE FACTS...3 IV. SUMMARY OF THE ARGUMENT 6 V. ARGUMENT. 8 A. OVERVIEW OF RELEVANT ELECTION STATUTES 8 B. THE CIRCUIT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO CONSIDER THE PLAINTIFF S COMPLAINT SEEKING A WRIT Of MANDAMUS BECAUSE THERE EXISTED AN ADEQUATE REMEDY AT LAW IN THE FORM OF AN APPEAL BY BILL OF EXCEPTIONS UNDER MISS. CODE ANN C. THE REMEDY OF MANDAMUS SHOULD NOT BE AFFORDED TO POWELLBECAUSE THE MUNICIPAL ELECTION COMMISSION PERFORMED ITS STATUTORY DUTIES 17 D. THE STANDARD OF REVIEW FOR INTERPRETING A STATUTE AND AIDS TO STATUTORY CONSTRUCTION.19 E. THE HUMPHREYS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE PROPERLY AND TIMELY ACTED BEFORE THE ELECTION AS THE TEMPORARY MUNICIPAL PARTY EXECUTIVE COMMITTEE FOR THE TOWN OF ISOLA TO iii

5 QUALIFY MS. MILLER AS A CANDIDATE AND, FINDING HER UNOPPOSED IN THE PRIMARY ELECTION, DECLARE HER THE PARTY NOMINEE FOR MAYOR..20 F. SHOULD THE COURT FIND THAT THE DEMOCRATIC EXECUTIVE COMMITTEE DID NOT TIMELY FOLLOW (2) IN CERTIFYING CANDIDATE MILLER AS THE PARTY NOMINEE THEN THE REMEDY SHOULD NOT BE DECLARE CANDIDATE POWELL THE WINNER BUT TO ORDER A SPECIAL ELECTION..27 VI. CONCLUSION...29 iv

6 TABLE OF AUTHORITIES Cases Aldridge v. West, 929 So.2d 298 (Miss.2006) 12 Bennett v. Board of Supervisors of Pearl River County, 987 So.2d 984 (Miss.2008) 12 Everitt v. Lovitt, 192 So.2d 422 (Miss.1966) 12 Falco Lime, Inc. v. Mayor & Aldermen of the City of Vicksburg, 836 So.2d 711(Miss.2002)...16 Hinds County Democratic Executive Comm. v. Muirhead, 259 So.2d 692 (Miss.1972) 15,16,17 In re Wilbourn, 590 So.2d 1381 (Miss.1991)..15,18 Jackson County Sch. Bd. v. Osborn, 605 So.2d 731 (Miss. 1992).12 Jefferson v. State, 95 So.3d 709 (Miss.2012)...19 Ladner v. Necaise, 771 So.2d 353 (Miss. 2000) Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897 (Miss. 2007)..20 Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416 ( 43) (Miss.2004).26 McIntosh v. Sanders, 831 So.2d 1111 (Miss.2002) 28 Mississippians Educating for Smart Justice, Inc. v. Mississippi Dept. of Corrections, 98 So.3d 459 (Miss.2012) 19 v

7 Mississippi State and School Employees' Life and Health Plan v. KCC, Inc. 108 So.3d 932 (Miss. 2013) Moore v. Parker, 962 So.2d 558 (Miss.2007) Noxubee County Democratic Executive Committee v. Russell, 443 So.2d 1191 (Miss.1983) Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1276 (Miss.2006) 19 Smith v. Hollins, 905 So.2d 1267 (Miss.2005)..29 Stringer v. Lucas, 608 So.2d 1351(Miss.1992) Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274 (Miss.2012) 19 Town of Terry v. Smith 48 So. 3d 507 (Miss. 2010)...14,17 Wallace v. Election Com'n of Town of Edwards, 118 So.3d 568 (Miss. May 16, 2013) 16 Wilby v. Bd. of Supervisors, 226 Miss. 744, 750, 85 So.2d 195, 198 (1956)..12 Statutes Miss. Code Ann ,12 Miss. Code Ann ,7,13,14,16,17 Miss. Code Ann Miss. Code Ann vi

8 Miss. Code Ann ,20 Miss. Code Ann ,8 Miss. Code Ann ,5,8,9,11 Miss. Code Ann ,7,10,17,18,19,20,21,22,23,26 Miss. Code Ann ,8,9,11 Miss. Code Ann Miss. Code Ann Rules Miss. R. Civ. P MRAP 34.1 Other Authorities 2010 Miss. Laws Ch Jeffrey Jackson, Mary Miller [editors]. Encyclopedia of Mississippi Law 19: Miss. Att y Gen. Op , 2007 WL , Arbuthnott (Sept. 12, 2014) 18 Miss. Att y Gen. Op , 2008 WL , Dill (March 7, 2008) Mississippi Official and Statistical Register (Blue Book) vii

9 I. STATEMENT OF THE ISSUES Whether the circuit court had subject matter jurisdiction to consider the appellant Dimp Powell s complaint seeking the extraordinary remedies of mandamus and prohibition when he had available to him the legal remedy of an appeal by bill of exceptions under Miss. Code Ann Whether the Circuit Court correctly held that the appellee Municipal Election Commission of the Town Isola, Mississippi properly placed Ms. Bobbie Miller on the general election ballot as the Democratic nominee for mayor. II. STATEMENT REGARDING ORAL ARGUMENT Pursuant to MRAP 34(b), oral argument will be helpful to this Honorable Court in analyzing this case in light of the Mississippi judiciary s historic reluctance to intervene in pending elections through the issuance of injunctions and extraordinary writs. Oral argument will focus on whether the circuit court had subject matter jurisdiction to consider the complaint of the plaintiff, a candidate for mayor, seeking a writ of mandamus against the municipal election commission to prevent the plaintiff s opponent from having her name placed on the general election ballot. Oral argument will also benefit this Honorable Court in analyzing a recent legislative act, which authorizes a county party executive committee to assume the role of a temporary municipal party executive committee, particularly as it pertains to qualifying a party candidate so that she will be placed on the general election ballot as the party nominee. III. STATEMENT OF THE CASE A. COURSE OF PROCEEDINGS AND DISPOSITION BELOW - 1 -

10 On May 28, 2013 the Appellant, Dimp Powell, an independent candidate for mayor, filed his Emergency Complaint for Writ of Mandamus or, in the alternative, for Writ of Prohibition in the Circuit Court of Humphreys County, Mississippi, naming as the defendant therein the Appellee, the Municipal Election Commission of the Town of Isola, Mississippi. R Powell s complaint sought an emergency hearing and requested that the circuit court issue a writ of mandamus directing the Municipal Election Commission to remove Ms. Bobbie Miller, the Democratic nominee for mayor, from the ballot for the municipal general election to be held on Tuesday, June 4, 2013 or, in the alternative, to issue a writ of prohibition to prohibit any votes for Ms. Miller from being counted. R 7-8. Powell and Miller were the only two persons to have filed candidate qualification papers for the office of mayor. R The circuit court scheduled an emergency hearing that was held on Thursday, May 30, 2013, at the Humphreys County Courthouse. R. 24. Prior to the commencement of the hearing the Isola Municipal Election Commission filed its Answer and Affirmative Defenses. R The circuit court heard the arguments of counsel and the testimony of witnesses, which included the Town of Isola s municipal clerk, mayoral candidate Bobbie Miller, and the three members of the Municipal Election Commission. Tr. At At the conclusion of the hearing, the circuit court rendered its opinion and decision from the bench, Tr. At , and subsequently entered its written Order and Judgment of Dismissal, dismissing Powell s complaint and assessing costs against him. R As the appellant stated in his brief, the record consists of a hearing transcript with pages numbered and a record with pages numbered As was done by the appellant in his brief, the transcript is referenced herein as Tr. ; the record as R ; and the Appellant s Record Excerpts as RE. The appellee has elected not to add other extracts

11 On June 3, 2013, Powell filed his notice of appeal, R. 47, which was supplemented on June 13, 2013, to reference the circuit court s written order of dismissal. R. 56. On June 26, 2013, Powell moved to have his appeal heard by this Honorable Court on an expedited basis, which motion was denied on July 9, M # B. STATEMENT OF THE FACTS On January 23, 2013, Bobbie Jean Miller submitted her Qualifying Statement of Intent for Party Nomination for the Office of Mayor of the Town of Isola, indicating on the form that she was running as a Democrat. R. 36, Tr. at 74. She also submitted with her qualifying statement form the sum of ten dollars in cash to pay for the statutory filing fee. Tr. at 74.Ms. Miller s qualifying statement and cash were received by the municipal clerk, the Honorable Akesha Ashford, who signed her name on the received by signature line on the qualifying statement form. Tr. At 75, R. 36. At that point in time, the statutory filing deadline for candidates for mayor was still 44 days away, on, Friday, March 8, The statutory municipal primary election day fell on May 8, 2013, and the general election day fell on June 8, The only other person besides Ms. Miller to have filed candidate qualification papers for the office of mayor was the incumbent, the appellant Dimp Powell, who filed to run as an independent. Tr. at On Wednesday, March 6, 2013, two days before the candidate qualifying deadline, the municipal clerk called candidate Miller to inform her that the clerk s office could not accept cash as payment for the party candidate filing fee, and that Ms. Miller would need to submit a check or a money order in the sum of ten dollars. Tr. at 76. Ms. 2 Miss. Code Ann , Miss. Code Ann Miss. Code Ann , Miss. Code Ann

12 Miller immediately went to the United States Post Office in Isola and obtained a money order in the sum of ten dollars, made payable to the municipal executive committee, which was tendered to and accepted by Ms. Ashford, who returned the ten dollars cash to Ms. Miller. Tr. at 76; R. 37. Sometime after the Friday, March 8, 2013, filing deadline the municipal clerk, for reasons that are not entirely clear, decided to mail Ms. Miller s and Mr. Powell s qualifying statements and filing fees to the Mississippi Secretary of State, which was apparently received by that agency on Tuesday, March 12, R Under cover of a letter dated Thursday, March 14, 2013, the Assistant Secretary of State for the Elections Division returned the candidate qualifying statements and filing fee checks to the Isola municipal clerk. Id. The Assistant Secretary of State s letter describes a telephone conversation she had with an Isola deputy municipal clerk in which she had stated that because there was no Democratic Municipal Executive Committee for the Town of Isola in place the municipal clerk cannot accept the statement of intent 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. Id. The Assistant Secretary of State s letter goes on to state that Ms. Miller should be advised by your office that no primary will be held in 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. Id. On Thursday, March 21, 2013, a week after the date of the letter from the Assistant Secretary of State, Mayor Powell contacted Ms. Miller and asked her to meet with him at his office at the Isola town hall. Tr. at Ms. Miller arrived at the meeting, which included Mayor Powell, Clerk Ashford and Deputy Clerk Melody Jones

13 Id. At the meeting, Powell handed Ms. Miller the letter from the Assistant Secretary of State, which Ms. Miller read without discussion. Id. Ms. Miller left the meeting and immediately contacted Joyce B. McNair, the Chairperson of the Humphreys County, Mississippi Democratic Executive Committee. Tr. at The county executive committee convened the next day, on Friday, March 22, 2013, and, acting as Isola s temporary Democratic Municipal Executive Committee, in accordance with Miss. Code Ann (2), 4 found Ms. Miller qualified to run for office. R. 41. The executive committee further found that Ms. Miller was the only candidate to have qualified to run as a Democrat for mayor and certified her as the Democratic nominee, with her name to be placed upon the general election ballot 5 Id. Subsequent to the meeting of the Humphreys County Democratic Executive Committee qualifying Ms. Miller s candidacy, the Isola municipal clerk sought an attorney general s opinion, which was rendered by that office on April 22, 2013, stating that the decision of the Humphreys County Democratic Executive Committee to act as the Town of Isola temporary municipal executive committee in qualifying Ms. Miller s candidacy was untimely because the executive committee s decision to act in that capacity had not been made prior to the March 8, 2013 filing deadline. R On May 24, 2013, the Isola Municipal Election Commission convened and voted to place Ms. Miller on the general election ballot as the Democratic nominee for mayor. 4 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. 5 Where there is but one (1) candidate, the proper municipal executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee. Miss. Code Ann (5)

14 R. 46. The Election Commission supplied the reasons for their decision in a letter to the municipal clerk, Id., and, later, through testimony of the respective commissioners adduced during the circuit court hearing on Powell s emergency complaint held on May 30, R , , The election commissioners, while taking into account the positions of the secretary of state and the attorney general regarding Ms. Miller s candidacy, found that the municipal clerk should have sent Ms. Miller s qualifying papers and filing fee to the Humphreys County Democratic Executive Committee after they were received on January 23, 2013, to give that body the opportunity to convene as a temporary municipal executive committee to consider Ms. Miller s qualifications.r.46. Linda Goad, The election commission chairperson, testified that she had personally conferred with the Assistant Secretary State over the Elections Division about the opinion of that office concerning Ms. Miller s candidacy and that that state official reminded her that, ultimately, it was the election commissioners who decide who should be placed on the ballot. R ,100. The Isola general election was held on June 4, 2013, and Ms. Miller was declared the winner, defeating Mayor Powell by a vote of 226 to 127. See Official Recapitulation of Votes Cast. 6%204%202013/Isola.pdf IV. SUMMARY OF THE ARGUMENT The circuit court did not have subject matter jurisdiction to consider the complaint for writ of mandamus filed by the appellant, Dimp Powell, against the appellee, the Municipal Election Commission of the Town Isola, which sought to remove the name of - 6 -

15 his opponent from the general election ballot or prevent any ballots cast for his opponent from being counted. Instead, the appellant should have challenged the decision of the election commission to place his opponent s name on the ballot by filing with the circuit court an appeal by bill of exceptions under Miss. Code Ann Even if the circuit court is found to have had subject matter jurisdiction to consider the appellant s mandamus complaint, the appellant still was not entitled to any relief since the election commission, having determined that the opposing candidate met the qualifications for office and had been certified by the political party executive committee to be the party nominee, had no choice but to place this person on the ballot, in accordance with Miss. Code Ann (2). That statute provides that The municipal general election ballot shall contain the names of all candidates who have been put in nomination by the municipal primary election of any political party. In order for mandamus to lie there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel. Here, the only duty the election commission had was to place the name of the opposing candidate on the ballot. Miss. Code Ann (2) provides that 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. There is no statutory requirement that a county party executive committee must affirmatively agree to act as a temporary municipal executive committee before the filing deadline for candidates. Rather, Section (2) should be construed to allow the county party executive committee to decide to serve as a temporary municipal executive committee - 7 -

16 even after the filing deadline where, in circumstances like those presented in the instant case, (a) the municipal clerk in fact accepted a statement of intent and filing fee of a candidate seeking a political party s nomination, (b) the municipal clerk did not bring the absence of a municipal party executive committee to the candidate s attention before the filing deadline, and (c) the subsequent action taken by the county executive committee in qualifying a candidate, and certifying her as the party nominee if she were unopposed, would not materially delay any aspect of the primary or general election, including absentee voting. In the instant case, the party executive committee met in a timely fashion to qualify the opposing candidate and declare her the party nominee. Should the Court determine that the party executive committee s certification action was untimely then the remedy would not be to declare the appellant the winner of the election by default but, instead, require a special election to be held. V. ARGUMENT A. OVERVIEW OF RELEVANT ELECTION STATUTES A general municipal election shall be held in each city, town or village on the first Tuesday after the first Monday of June, 1985, and every four (4) years thereafter, for the election of all municipal officers elected by the people. Miss. Code Ann Accordingly, the most recent Mississippi municipal general election was held last year, on Tuesday, June 4, The deadline for candidates seeking municipal elective office to file to run for office is 60 days prior to the general election, which in the case of last year s election was Friday, March 8, Miss. Code Ann ; Miss. Code Ann

17 A candidate running for municipal office may file either as an independent or as a candidate seeking the nomination of a political party. Miss. Code Ann ; Miss. Code Ann. 309(1). Municipal political party candidates run in a primary election. Miss. Code Ann. 309(1). Municipal primary elections shall be held on the first Tuesday in May preceding the general municipal election and, in the event a second primary shall be necessary, such second primary shall be held on the third Tuesday in May preceding such general municipal election. Id. In the case of last year s municipal elections the date of the party primary election was May 8, 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. Miss. Code Ann (1). The fee paid [by the political party candidate] 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. Miss. Code Ann (2). The [municipal] 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. Miss. Code Ann (3). 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. Id. The clerk shall promptly supply all necessary information and pay over all fees so received to the secretary of the proper municipal executive committee. Id

18 At such primary election the municipal executive committee shall perform the same duties as are specified by law and performed by members of the county executive committee with regard to state and county primary elections. Miss. Code Ann Each municipal executive committee shall have as many members as there are elective officers of the municipality, and such members of the municipal executive committee of each political party shall be elected in the primary elections held for the nomination of candidates for municipal offices. Id. In the event there is no municipal party executive committee in place for the primary election two methods are authorized under Miss. Code Ann to address the problem. The first method is for the chairman of the county party executive committee to call a mass meeting of voters for the purpose of selecting members of a temporary municipal executive committee. Miss. Code Ann (1). This subsection was amended in 2010 to provide that the members of the temporary executive committee be selected within thirty (30) days of the date for which a candidate for a municipal office is required to qualify in that municipality Miss. Laws Ch The second method, added by the legislature in 2010 as a new subsection, provides that 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. Miss. Code Ann (2). The municipal party executive committee is charged with determining whether each party candidate for mayor is a qualified elector of the municipality and meets all of legal requirements to hold the office he or she is seeking. Miss. Code Ann

19 309(4). Where there is but one (1) candidate, the proper municipal executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidate the nominee. Miss. Code Ann (5). The governing authorities of municipalities having a population of less than twenty thousand (20,000) inhabitants according to the last federal decennial census shall appoint three (3) election commissioners all of whom shall perform all the duties in respect to the municipal election prescribed by law to be performed by the county election commissioners where not otherwise provided. Miss. Code Ann B. THE CIRCUIT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO CONSIDER THE PLAINTIFF S COMPLAINT SEEKING A WRIT Of MANDAMUS BECAUSE THERE EXISTED AN ADEQUATE REMEDY AT LAW IN THE FORM OF AN APPEAL BY BILL OF EXCEPTIONS UNDER MISS. CODE ANN Powell s complaint is in the form of a petition for writ of mandamus or alternatively a writ of prohibition. Miss. Code Ann , found in the chapter of the Mississippi Code providing for mandamus and prohibition, provides: On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not

20 a plain, adequate, and speedy remedy in the ordinary course of law. Miss.Code Ann (Rev.2002). Bennett v. Board of Supervisors of Pearl River County, 987 So.2d 984 (Miss.2008) discussed the requirements for mandamus thusly: Our case law has expounded upon the remedy of mandamus by requiring that four essential elements coexist before a writ of mandamus may issue: (1) the petitioner must be authorized to bring the suit, (2) there must be a clear right in petitioner to the relief sought, (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel, and (4) there must be no other adequate remedy at law. Aldridge v. West, 929 So.2d 298, 302 (Miss.2006). In addition to the four essentials, petitioners for writs of mandamus must also show that they have an interest separate from or in excess of that of the general public in order to have standing to seek the writ. Id. (citing Jackson County Sch. Bd. v. Osborn, 605 So.2d 731, 734 (Miss.1992)). 987 So.2d at ( 6). The remedy of prohibition has the same central requirement of mandamus: It is the well settled rule that the remedy by a writ of prohibition does not lie where there is a plain, adequate and speedy remedy in the ordinary course of law. Wilby v. Bd. of Supervisors, 226 Miss. 744, 750, 85 So.2d 195, 198 (1956)( If a complete remedy lies by appeal, certiorari, mandamus, or in any other manner, writ of prohibition should be denied.) also see Everitt v. Lovitt, 192 So.2d 422, 426 (Miss.1966)( the doctrine under which no extraordinary legal or equitable relief is available where there is an adequate

21 remedy at law includes cases in which there exists a right of statutory appeal from action of an administrative agency.) In the instant matter, the circuit court did not have subject matter jurisdiction to grant Powell either a writ of mandamus or a writ of prohibition; in regard to the action taken by the Isola municipal election commission to place candidate Miller on the general election ballot there was an adequate remedy at law available to Powell, in the form of an appeal by bill of exceptions as provided by Miss. Code Ann The procedural requirements of Section include filing a bill of exceptions within ten days of the adjournment of the meeting of the governmental body where the action complained of had occurred. 6 In the instant matter, the Isola Election Commission convened on May 24, 2013, and supplied its written decision as it pertained to placing candidate Miller on the general election ballot. R. 46. Clearly, Powell was aware of the meeting of the Election Commission, having introduced into evidence as one of his exhibits at the circuit court hearing the written decision of that body. Id. Powell should have filed an appeal of the Election Commission s decision in accordance with Section Moreover, Powell s statement in his brief that there was no hearing by the election commission, which purportedly excuses him from using the appeal procedure, is inconsistent with the testimony of that body chair during the circuit court hearing and the 6 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

22 aforesaid written decision of the commission, which memorialized the proceedings of that body on May 24, Recently, in Town of Terry v. Smith, 48 So.3d 507 (Miss.2010), this Honorable Court ruled that appeal by bill of exceptions, not by certiorari, 7 was the applicable judicial procedure for a person challenging a municipal election commission s decision that the name of the purported party nominee for mayor designated by that political body could not be listed on the general election ballot because the municipal party executive committee had not been properly formed. 48 So.3d at ( 3,11,15). In the instant matter, although Powell frames his complaint as one seeking mandamus and prohibition, he is in fact challenging the May 24, 2013 decision of the Municipal Election Commission to place Ms. Miller s name on the general election ballot as the Democratic nominee for mayor. Powell s position in this case, that the election commission should not have placed Miller on the general election ballot because the temporary municipal party executive committee had not been timely formed, is similar to the position taken by the appellee municipal election commission in the Town of Terry case; however, the difference between the instant case and the Town of Terry case is that the appellee in Town of Terry correctly argued that the circuit court could only consider the decision of the municipal election commission to refuse to place the Democratic candidate on the general election ballot through the vehicle of an appeal. Clearly, Powell should have appealed the commission s decision regarding the ballot by filing a bill of exceptions under Section , as required by the Town of Terry decision. 7 See Miss.Code Ann , (Rev.2002)

23 Likewise, Powell cannot use mandamus as an alternative procedure to an appeal by bill of exceptions. In Hinds County Democratic Executive Comm. v. Muirhead, 259 So.2d 692 (Miss.1972), which involved a candidate seeking to be placed on the primary election ballot, this Honorable Court ruled that the remedy of mandamus was unavailable when at the same time the plaintiff had the remedy of appeal. 295 So.2d at 695. In the case of In re Wilbourn, 590 So.2d 1381 (Miss.1991) this Honorable Court cited a long line of decisions that adhered to the doctrine of non-judicial interference in the election scheme. 590 So. 2d at Citing In re Wilbourn, the legal treatise on Mississippi Law stated our election law jurisprudence thusly: Once the candidates have qualified and an election is in process, Mississippi's courts will generally stay their hand until election day has come and gone. With wisdom, the court has seen that judicial intervention could-and almost certainly would-lead to tactical maneuvering that might manipulate the public will and subject candidates, their supporters and the electorate to great and unfair disadvantage. Jeffrey Jackson, Mary Miller [editors]. Encyclopedia of Mississippi Law. 19:162 (footnote citing In Re Wilbourn omitted). Clearly, Powell s filing a mandamus action while an election was under way invites the type of judicial interference shunned by this Honorable Court. As noted above, for candidate Powell to challenge the decision of the election commission he should have taken an appeal by bill of exceptions

24 pursuant to Section Were he to have taken the correct statutory route Powell could have caused the circuit court to address the alleged emergency pertaining to candidate Miller s placement on the general election ballot by moving for expedited consideration of his appeal, see Muirhead,295 So.2d at 695, and likewise moving for a stay of the Election Commission s decision under Miss. R. Civ. P. 62(h). See Falco Lime, Inc. v. Mayor & Aldermen of the City of Vicksburg, 836 So.2d 711, ( 20) (Miss.2002). This Court s recent decision in Wallace v. Election Com'n of Town of Edwards, 118 So.3d 568 (Miss. May 16, 2013) (en banc), is factually distinguishable. In that case the appellant, a candidate for mayor running as an independent, sought from the circuit court a writ of mandamus to order the municipal election commission to convene a hearing to act on the candidate s petition to have his name placed on the ballot, claiming that the election commission improperly rejected eighteen names of the fifty qualified electors he needed in order to qualify. In reversing the circuit court s decision to deny his petition for writ of mandamus, this Honorable Court found that the candidate was entitled to a reasonable opportunity to present his case, as a matter of due process. Notably, Justice Pierce, joined by Chief Justice Waller and Justice Chandler, objected to the majority s order instructing the circuit court to grant the candidate s petition for mandamus, first disagreeing with the majority that the candidate s due process rights were violated and opining that, even if the candidate had been entitled to some form of due process hearing, the candidate s remedy was to appeal from the municipal election commission s decision

25 pursuant to Section , citing Town of Terry and Muirhead as case authorities. C. THE REMEDY OF MANDAMUS SHOULD NOT BE AFFORDED TO POWELL BECAUSE THE MUNICIPAL ELECTION COMMISSION PERFORMED ITS STATUTORY DUTIES. Although the remedy of mandamus may lie to compel a governmental body to perform an official or ministerial duty, here the Isola Municipal Election Commission performed its official duty under Miss. Code Ann , which was to determine the qualifications of the person certified to them as the Democratic nominee for mayor, namely candidate Miller. In regard to placing Ms. Miller on the ballot, the election commission s role under Section was to determine whether the candidate was a qualified elector of the municipality and met all of the other qualifications to hold the office she was seeking. Ms. Miller s qualifications to run for mayor, i.e. that she was a qualified elector of the Town of Isola, are not at issue in this case. Section does not authorize the municipal election commission to refuse to place a party nominee s name on the general election ballot based on any purported irregularity in the process attendant to a political party municipal executive committee s certification of a candidate as its nominee, such as when and how the committee decided to exercise its powers under Section (2), and Powell has cited no legal authority affording the election commission such authority

26 Here, the Isola Municipal Election Commission had before it the letter from the chairperson of the Humphreys County Democratic Executive Committee stating therein that that body had acted as Isola s temporary municipal party executive committee under Miss. Code Ann (2) and had certified Ms. Miller as the Democratic nominee for mayor. Section , which governs certain responsibilities of the municipal election commission, expressly mandates the following: The municipal general election ballot shall contain the names of all candidates who have been put in nomination by the municipal primary election of any political party. (emphasis added). Clearly, Ms. Miller had been nominated as the Democratic candidate for the office of mayor through the written certification of the party executive committee. Under those circumstances, the election commission was duty bound under Section to place Ms. Miller s name on the general election ballot. 8 Accordingly, the remedies of mandamus and prohibition sought by Powell do not properly lie. Powell s real grievance is not with the election commission for putting Miller s name on the general election ballot, but with the Humphreys County Democratic Executive Committee concerning that body s decision on March 23, 2013, to certify Miller s candidacy for mayor. However, Powell elected to forego pursuing a judicial action directly against the party executive committee, which could have taken the form of a petition for writ of prohibition. In re Wilbourn, 590 So.2d at ( a court could, if necessary,. prohibit [a party executive 8.Election Commission is bound [by the statute] to recognize the Democratic Party nominees for the offices in question certified by the County Democratic Executive Committee Miss. Att y Gen. Op , 2007 WL , Arbuthnott (Sept. 12, 2014)

27 committee] by way of injunction or writ of prohibition from exceeding its statutory authority in some respect. ). As stated above, Powell employed the wrong legal vehicle against the wrong defendant to achieve his goal of disqualifying Ms. Miller s candidacy. D. THE STANDARD OF REVIEW FOR INTERPRETING A STATUTE AND AIDS TO STATUTORY CONSTRUCTION The remainder of this brief pertains to the proper interpretation of Miss. Code Ann (2), which authorizes a county party executive committee to act as a temporary municipal party executive committee in connection with a municipal election if no such municipal party executive committee was formed before an election. Questions of law, such as statutory interpretation, are subject to a de novo standard of review. Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274, 278 (Miss.2012). The ultimate authority and responsibility to interpret the law, including statutes, rests with the Supreme Court. Mississippi State and School Employees' Life and Health Plan v. KCC, Inc., 108 So.3d 932, 939 (Miss. 2013). The Supreme Court's duty in interpreting statute is to neither broaden nor restrict the legislative act. Mississippians Educating for Smart Justice, Inc. v. Mississippi Dept. of Corrections, 98 So.3d 459, 461(Miss.2012). It is not a court's function to decide what a statute should provide, but to determine what it does provide. Jefferson v. State, 95 So.3d 709, 714 (Miss.2012). The Supreme Court's duty is to interpret statutes as written and not to add language where it sees fit. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1276 (Miss.2006)

28 The Supreme Court is bound by the plain meaning of the statutes, and it is the task of the Legislature, and not the Court, to make the laws of the state. Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897, 906 (Miss. 2007). The language of a statute is controlling, and that language should be attributed a usual and ordinary meaning. Ladner v. Necaise, 771 So.2d 353, 355 (Miss. 2000). E. THE HUMPHREYS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE PROPERLY AND TIMELY ACTED BEFORE THE ELECTION AS THE TEMPORARY MUNICIPAL PARTY EXECUTIVE COMMITTEE FOR THE TOWN OF ISOLA TO QUALIFY MS. MILLER AS A CANDIDATE AND, FINDING HER UNOPPOSED IN THE PRIMARY ELECTION, DECLARE HER THE PARTY NOMINEE FOR MAYOR. Even if this Honorable Court were to find that the circuit court had subject matter jurisdiction to hear Powell s complaint under the mandamus statute or otherwise, the appellant cannot demonstrate that he has any right to the relief sought. As will be discussed, the Humphreys County Democratic Executive Committee timely and properly stepped forward to qualify Ms. Miller as the Democratic nominee for mayor, utilizing Section (2) to do so. A political party may have in place a municipal executive committee, having as many members as there are elected officials in the municipality. Miss. Code Ann Members of the executive committee are elected every four years in the municipal party primary election. Id. The municipal party executive committee members so elected are thus responsible for conducting the party primary four years later. Id

29 Section addresses the methods by which a temporary party executive committee may be created in the event there is no executive committee in place. The first method authorizes the chairman of the county party executive committee, upon the petition of five qualified electors of the political faith, to call a mass meeting to select temporary members until the permanent members are elected at the next primary election. In 2010 the Mississippi Legislature amended Section to provide a second method for creating a temporary municipal party executive committee, which is set forth as follows: 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). In the instant case, the Humphreys County Democratic Executive Committee expressly stated in its letter dated March 22, 2013 to the Isola municipal clerk that it was acting as a temporary municipal executive committee,

30 citing Section (2). In so acting as a temporary municipal executive committee the body addressed its first and only order of business, which was to consider the qualifications of Ms. Miller as a candidate. Then, having found Ms. Miller to be the sole Democratic candidate to have filed for mayor, the county executive committee certified her as the party nominee for the municipal general election. The decision of the county executive committee was made on March 22, 2013, some 46 days before the date scheduled for the municipal party primary election (which, notably, did not have to be conducted because Ms. Miller was the only Democrat to file for any municipal office) and 74 days before the date scheduled for the general election (where she appeared on the ballot). The certification decisions of the Humphreys County Democratic Executive Committee, and later the Isola Election Commission, prejudiced no voter or candidate, except, perhaps, Powell, who was not permitted to skate back in to office without an opponent. That Ms. Miller had her name placed on the general election ballot and then won the election by a comfortable margin, without subsequent contest, is proof that Section (2) performed the function for which it was intended, which is to facilitate political party candidates participating in municipal elections every four years. Clearly, the Humphreys County Democratic Executive Committee properly and timely served as the temporary municipal executive committee for the Town of Isola pursuant to Section (2). As a consequence, Powell was not entitled to the remedies of mandamus and prohibition. Thus, the decision of the circuit court to dismiss Powell s petition should be upheld

31 Section (2) does not set a specific date for when the county party executive committee has to perform the function of a temporary municipal executive committee. Notably, the party executive committee could not practically perform its first legal function, which was to determine whether each party candidate for mayor met the qualifications for the office he or she was seeking, as set forth in Miss. Code Ann (4), until sometime after the Friday, March 8, 2013 candidate filing deadline. Clearly, such a meeting of the party executive committee to consider candidate qualifications could not have taken place until the following week, which would have been the week of March 11 through 15. The executive committee certified Miller s candidacy exactly on Friday, March 22, 2013, 14 days after the March 8 filing deadline, which was 46 days before the statutory date of the primary election ( which did not have to be conducted because Miller was the only Democratic candidate to qualify) and 74 days before the date of general election ( where Miller was to appear on the ballot as the party nominee). We acknowledge that Miss. Code Ann provides for absentee balloting beginning 45 days prior to the election. If there had been a party primary election in Isola, which there wasn t because Miller was the only Democratic candidate, then under the absentee ballot law an elector would have been allowed to apply for an absentee ballot beginning Monday, March 25, 2013, three days after the county executive committee certified Ms. Miller as the party nominee for mayor. Section further provides that if the absentee ballot is not yet available then the clerk is required to mail the ballot to the voter when it is

32 ready. Additionally, the Mississippi Attorney General has advised circuit and municipal clerks that it is permissible to prepare in-house absentee ballots rather than waiting on the regular printing and possibly disenfranchising voters, provided that any such ballots are strictly accounted for. Miss. Att y Gen. Op , 2008 WL , Dill (March 7, 2008). Thus, even if there had been a contested party primary election in Isola in 2013, absentee voting could have been accomplished by mailing the ballot to the absentee voter after a ballot was printed or by fashioning an in- house ballot in the clerk s office. As noted, the Isola Election Commission gave due consideration to the attorney general s opinion issued to the Isola clerk, but disagreed with its conclusion. On further reflection the appellee notes the following: 1. In seeking the attorney general s opinion the Isola municipal clerk apparently failed to mention in her opinion request that she had in fact accepted Ms. Miller s qualifying papers on January 23, 2013, 44 days prior to the qualifying deadline, in accordance with Section (3), but took no steps to ascertain whether there was a municipal party executive committee in place; 2. The clerk apparently failed to tell the attorney general that she had no basic understanding of the municipal election process, even though she had been appointed clerk by the governing authorities two years beforehand, a statutory office to which she swore an oath and posted monetary bond, and by virtue of her office was the municipality s voting registrar; 3. She apparently failed to mention to the attorney general that she had called Ms. Miller two days before the filing deadline to tell her that she had been

33 mistaken in accepting ten dollars cash for the filing fee and, then, that very same day accepted Ms. Miller s ten dollar postal money order, which was made payable to the municipal executive committee; 4. She apparently failed to mention that at no time prior to the filing deadline did she, the clerk, inform Ms. Miller that there was no Municipal Democratic Executive Committee in place; 5. She apparently failed to mention that she, the clerk, sent Ms. Miller s qualifying papers to the Mississippi Secretary of State; 6. She apparently failed to mention that it was not until March 21, 2013 that she and Mayor Powell presented Ms. Miller with the Assistant Secretary of State s letter; 7. She apparently failed to mention that the Humphreys County Democratic Executive Committee acted the very next day, on March 22, 2013 to qualify Miller and certify her as the party nominee for mayor; and 8. She apparently failed to mention that candidate Miller was the only person to file as a Democrat for either mayor or alderman and that as a consequence no party primary election would have to be conducted. We believe that had the attorney general been provided with these additional facts and circumstances a different opinion would have been rendered. We believe that under the circumstances of this case, the proposed bright line offered by candidate Powell, that the county party executive committee must notify the municipal clerk in writing before the candidate filing deadline that it will act as the temporary municipal executive committee, is unfair to candidate

34 Miller and the voters, and improperly broadens the language of Section (2) which contains no such deadline. Rather, Section (2) should be construed to allow the county party executive committee to decide to serve as a temporary municipal executive committee even after the filing deadline where, in circumstances like those presented in the instant case, (a) the municipal clerk in fact accepted a statement of intent and filing fee of a candidate seeking a political party s nomination, (b) the municipal clerk did not bring the absence of a municipal party executive committee to the candidate s attention before the filing deadline, and (c) the subsequent action taken by the county committee in qualifying a candidate, and certifying her as the party nominee if she were unopposed, would not materially delay any aspect of the primary or general election, including absentee voting. Such a construction would protect candidates and the voters from negligence on the part of the municipal clerk in accepting filing papers while not ascertaining whether a party executive committee was in place, as occurred here. Such a narrow construction would conform to the doctrine of equitable estoppel. See Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416, 424 ( 43) (Miss.2004) ( a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed ). Such a construction protects a candidate who in good faith believes she will move forward in the election process by virtue of having her qualifying papers and filing fee duly accepted by the municipal clerk