IN THE CIRCUIT COURT OF JONES COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

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1 IN THE CIRCUIT COURT OF JONES COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT CHRIS MCDANIEL VS. THAD COCHRAN PETITIONER CAUSE NO CV08 RESPONDENT RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COMES NOW Respondent Thad Cochran, by and through undersigned counsel, and submits his memorandum in support of his motion to dismiss Petitioner Chris McDaniel's "Petition for Emergency Hearing Injunctive Relief and Judicial Review" ("the Petition") as follows: INTRODUCTION On August 4, 2014, Petitioner Chris McDaniel, the losing candidate in Mississippi's June 24, 2014 Republican primary runoff election for the office of United States Senate, initiated a "Complaint of Election Contest" before the Republican Party State Executive Committee. See Pet. at 3. On August 6, 2014, Petitioner was informed that the Republican State Executive Committee would not entertain the Complaint of Election Contest. Id. at 5; see also August 6, 2014 correspondence from Executive Committee Chairman to McDaniel's counsel, attached as Ex. "B " to Pet. On August 14, 2014, Petitioner filed the present Petition in this Court seeking to challenge the results of the runoff pursuant to Mississippi Code Petitioner's Complaint is untimely and must be dismissed. Challenges to an election for county-wide office must be initiated within twenty (20) days of the election. Miss. Code Ann The Mississippi Supreme Court has clearly stated that a challenge to a district or

2 state wide election must be initiated within twenty (20) days of the election. See Mississippi Code ; see also generally Kellum v. Joh nson, 115 So. 2d 147 (Miss. 1959). The election results of the June 24, 2014 Republican primary runoff were certified by the State Executive Committee on July 7, See certified election results, available at see also Miss. R. Evid Thus, the latest arguable deadline for Petitioner to challenge the results was July 27, The "Complaint of Election Contest," dated August 4, 2014, was not filed within the twenty-day time frame. Accordingly, the present Petition, dated August 14, 2014, must be dismissed as untimely. LAW AND ANALYSIS Petitioner relies upon Mississippi Code for the initiation of his election contest before the State Republican Party Executive Committee. See Pet. 3. He contends in the "Complaint of Election Contest" that the statute "authorizes the State Executive Committee, in cases of primary election for statewide office, to receive and investigate election-contest complaints and declare its findings thereon." Compl. 5, attached as Ex. "A " to Pet. Mississippi's Code contains two statutes that speak directly to contesting the results of a primary election. Section , which applies to elections for county-wide office, provides a maximum period of twenty (20) days from the date of the election to challenge the election results: Except as otherwise provided by Section [contesting the qualifications of a candidate], a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of one (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested... 2

3 Miss. Code Ann (emphasis added) Section the analogous statute Petitioner relies upon - provides the mechanism for contesting "the election of another returned as the nominee in state, congressional and judicial districts, and in legislative districts composed of more than one (1) county or parts of more than one (1) county." Miss. Code Ann Section states that challenges to an election for county office must be initiated within twenty (20) days of the election. Although not explicitly stated in Section , the Mississippi Supreme Court in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959) interpreted this time frame to apply equally to state-wide election contests of the type contemplated by Section In Kellum, the election contest was governed by Section 3144 of the Mississippi Code of the predecessor statute to Section that applied to primary elections involving "state, congressional and judicial districts." Kellum, 115 So. 2d at 149. Kellum sought to contest the nomination of a district attorney, but failed to file his complaint with the State Democratic Executive Committee until thirty-five (35) days after the primary. Id. at 148. The Committee took no action on his petition. Id. Kellum then filed his petition in Circuit Court and respondent moved to dismiss, citing Kellum's failure to contest the election within twenty (20) days of the primary. Id. Johnson's motion to dismiss was granted, id. at 148, and the Mississippi Supreme Court affirmed the Circuit Court's decision. Id. at 151. The Mississippi Supreme Court explained why the time frame in Section 3143 must be applied to Section 3144 of the Mississippi Code of The Court first addressed the rules of statutory construction: Statutes should, if possible, be given a construction which will produce reasonable results, and not uncertainty and confusion.... 3

4 The two sections here under consideration are parts of the whole.... The different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. The general intention is the key to the whole act, and the intention of the whole controls the interpretation of its parts. The fact that a statute is subdivided into sections or other parts should not obstruct or obscure the interpretation of the law as a whole.... Kellum, 115 So. 2d at 150 (internal quotation marks and citations omitted); see also Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1140 (Miss. Ct. App. 1999) and Marlow, L.L.C. v. BellSouth Telecomms., Inc., 686 F.3d 303, 309 (5th Cir. 2012) (citing Kellum with approval for its statutory construction analysis). The Court then applied these rules to its interpretation of Sections 3143 and 3144 of the Mississippi Code of 1942: Id. (emphasis added). Where one faces reality, it is obvious that primary election contests, if they are to be allowed and the favorable results thereof come to full fruition, must be conducted speedily. The names of party nominees, if they are to be of any avail, must go on the ticket for the general election.... It is inconceivable that the Legislature intended to limit the time in which contests could be filed where a county or beat office was involved, and yet fix no time limit whatever for that purpose in regard to all other offices.... The two sections are in pari materia, and all contests therefore must be begun within twenty days after the primary. To hold otherwise would be senseless. The Mississippi Legislature reenacted the primary election contest statutes in 1972 through its adoption of Sections and with substantially the same language. By taking this action subsequent to the Mississippi Supreme Court's ruling in Kellum, the Court's conclusion that a contest brought pursuant to Section 3144 must be filed within twenty (20) days of the election has become part of the current version of the statute, Section See Miller v. Ya zoo & M. V.R. Co., 132 So. 597, 608 (Miss. 1931) ("When a statute is re-enacted 4

5 or the subject has come up for legislative consideration after the statute has received an administrative or judicial construction it is presumed that such construction was embraced in the law and approved by the legislature."). Accord Barr v. Delta & Pine Land Co., 199 So. 2d 269, (Miss. 1967) ("The re-enactment of a statute after it has been construed by the agency charged with its enforcements, without materially altering the part construed, or without change indicative of a disapproval of a prior established construction, impliedly adopts the construction, especially where there are repeated re-enactments,.. where the administrative construction has also had judicial approval..."). Following the holding in Kellum, then, any contest of the June 24, 2014 Republican primary election for United States Senate, since it was not filed within twenty (20) days, must be barred as untimely. CONCLUSION The Supreme Court's decision in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959) bars Petitioner's contest of the Republican primary election for United States Senate. Accordingly, Respondent Thad Cochran respectfully requests that this Court dismiss the Petition as untimely. Respectfully submitted, this the 21st day of August, THAD COCHRAN Mark W. Garriga, (MB #4762) HIS ATTORNEYS 5

6 OF COUNSEL: BUTLER SNOW LLP 1020 Highland Colony Parkway, Suite 1400 (39157) Post Office Box 6010 Ridgeland, Mississippi Tel: Fax: I, Phil B. Abernethy, hereby certify that I have this day served a true and correct copy of the above and foregoing document upon the following: Mitchell H. Tyner, Sr North Jackson, MS Certificate of Service SO CERTIFIED this the 21st day of August, ButlerSnow vl 6