REPLY OF APPELLANT, DIMP POWELL

E-Filed Document May 7 2014 17:34:51 2013-EC-00928-SCT Pages: 11 IN THE SUPREME COURT OF MISSISSIPPI No. 2013-TS-00928 DIMP POWELL, V. MUNICIPAL ELECTION COMMISSION, APPELLANT APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HUMPHREYS COUNTY, MISSISSIPPI CASE NO.: 2013-0063 REPLY OF APPELLANT, DIMP POWELL Andrew N. Alexander III (MSB #1310) Lake Tindall LLP Post Office Box 918 Greenville, MS 38702-0918 Telephone: (662) 378-2121 Facsimile: (662) 378-2183 Kate Margolis (MSB #99625) Bradley Arant Boult Cummings LLP Post Office Box 1789 Jackson, MS 39215-1789 Telephone: (601) 948-8000 Facsimile: (601) 948-3000 Attorneys for Appellant Dimp Powell ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS Page I. THIS COURT HAS JURISDICTION.... 1 II. THE MUNICIPAL ELECTION COMMISSION HAD A CHOICE.... 1 III. IN ORDER TO HAVE A PARTY NOMINEE, A POLITICAL PARTY MUST HAVE AN EXECUTIVE COMMITTEE IN PLACE BY THE QUALIFYING DEADLINE FOR CANDIDATES.... 2 IV. A SPECIAL ELECTION IS NOT REQUIRED.... 5 - i -

TABLE OF AUTHORITIES Page CASES HARPOLE V. KEMPER COUNTY DEMOCRATIC EXECUTIVE COMM., 908 SO. 2D 129 (MISS. 2005)... 6 HINDS COUNTY DEMOCRATIC EXECUTIVE COMM. V. MUIRHEAD, 259 SO. 2D 692 (MISS. 1972)... 1 IN RE WILBOURN, 590 SO. 2D 1381 (MISS. 1991)... 1 MAYOR & BD. OF ALDERMEN, CITY OF CLINTON V. WELCH, 888 SO. 2D 416 (MISS. 2004)... 4 SMITH V. HOLLINS, 905 SO. 2D 1267 (MISS. 2005)... 6 STRINGER V. LUCAS, 608 SO. 2D 1351 (MISS. 1992)... 2, 5 TOWN OF TERRY V. SMITH, 48 SO. 3D 507 (MISS. 2010)... 1 STATUTES MISS. CODE ANN. 11 51 75... 1 MISS. CODE ANN. 23-15-217... 5 MISS. CODE ANN. 23-15-309... 2, 4 MISS. CODE ANN. 23-15-313... 2, 3, 4 MISS. CODE ANN. 23-15-361... 2 MISS. CODE ANN. 23-15-937... 5 OTHER AUTHORITIES Miss. Att'y Gen. Op. 2001-0155, 2001 WL 334174, Bowman, at *1 (March 16, 2001)... 4 Miss. Att'y Gen. Op., 2013-00121, 2013 WL 2200417, Ashford (April 22, 2013)... 4

I. THIS COURT HAS JURISDICTION. Whether the Court decides that the proper vehicle for relief under the circumstances here was mandamus or a bill of exceptions, it is clear that the Court has jurisdiction to consider this appeal because Powell has met the requirements for both. The Municipal Election Commission does not dispute in its Brief that Powell s Emergency Complaint met the essential requirements for relief under Miss. Code Ann. 11 51 75. The Election Commission asserts that Powell could have filed a writ of prohibition against the Humphreys County Democratic Executive Committee for exceeding its statutory authority, Appellee s Brief at page 18, but offers no principled reason why the same rule would not apply to an election commission under In re Wilbourn, 590 So. 2d 1381, 1385 (Miss. 1991) (en banc) (quoting Hinds County Democratic Executive Comm. v. Muirhead, 259 So. 2d 692, 695 (Miss. 1972)). 1 Similarly, it fails to explain why a request for mandamus somehow constitutes judicial interference in an election, but filing an appeal by bill of exceptions before an election or requesting a stay of an election does not. Finally, the Election Commission fails to address the conflicting case law indicating that municipal election commissions are not municipal authorities within the meaning of 11 51 75. II. THE MUNICIPAL ELECTION COMMISSION HAD A CHOICE. The argument that Powell failed to meet the necessary elements for mandamus because the Election Commission had no choice whether to list Miller as the Democratic nominee suffers from similar flaws. 2 At a minimum, it is implied in Town of Terry v. Smith, 48 So. 3d 507, 508 (Miss. 2010), that the election commission there indeed had the choice to refuse to list a 1 The Election Commission fails to note on page 15 of its Brief that unlike the situation here, the statute at issue in Muirhead, 259 So. 2d at 694, expressly provided procedures for a hearing and an appeal. 2 The Election Commission does not appear to dispute that Powell has an interest in the decision to list Miller as the Democratic nominee that is separate from the interest of the general public.

purported Democratic nominee s name on the general election ballot, based on its determination that the municipal party executive committee had been improperly formed. See also Stringer v. Lucas, 608 So. 2d 1351, 1353-1354 (Miss. 1992) (noting that election commissioners decided candidate was ineligible to be mayor after evaluating this Court s legal precedent). The statute cited by the Election Commission on pages 17-18 of its Brief, Miss. Code Ann. 23-15-361, presumes a primary election, which presumes proper formation of the party executive committee to conduct that election, neither of which occurred here. 3 If the Election Commission had no choice, what was the purpose of the hearing it allegedly held or its consideration of the Attorney General s Opinion? See Appellee s Brief at pages 13, 24. The bottom line is that the Election Commission indeed had a choice whether or not to list Miller as the Democratic nominee on the general election ballot. Because their choice conflicts with the election statutes as a matter of law and thus exceeds the Election Commission s statutory authority, however, this Court has the authority to correct the problem via mandamus or prohibition. III. IN ORDER TO HAVE A PARTY NOMINEE, A POLITICAL PARTY MUST HAVE AN EXECUTIVE COMMITTEE IN PLACE BY THE QUALIFYING DEADLINE FOR CANDIDATES. The Election Commission fails to address Powell s arguments based on the plain language of Miss. Code Ann. 23-15-313 and 23-15-309, the rules of statutory construction, the policy reasons for a bright line rule (including indiscriminate treatment of potential nominees based on the county party executive committee s complete discretion whether or not to act as the temporary municipal executive committee), 4 and the legislative history of 23-15-313, as well 3 The Attorney General s opinion cited in footnote 8 on page 18 of the Election Commission s Brief is factually distinguishable and addressed a different question: there, only three members of the county party executive committee certified an election potentially a problem as the statute at issue appeared to require certification by a majority of the committee but a majority subsequently certified the results after considering several election contests. 4 Miller herself would have had no legal recourse had the Humphreys County Executive Committee declined to purport to act as the temporary municipal executive committee for Isola. - 2 -

as Powell s argument regarding why substantial compliance with 23-15-313 is insufficient. For example, in asserting that section (2) of 23-15-313 fails to set a specific date for a county executive committee to act, the Election Commission ignores the rule of statutory construction that section (2) should be read in harmony with section (1), which requires a temporary committee to be formed within 30 days of the candidate filing deadline. Even were the Election Commission correct that the Legislature intended section (2) to facilitate political party participation in municipal elections (although it cites no supporting legislative history for that proposition), there is no evidence the Legislature intended to allow a temporary committee to be formed after the qualifying deadline. 5 These failures to respond or cite supporting evidence and authority reveal the unsoundness of the Election Commission s position. The Election Commission argues that a county executive committee has no affirmative duty under 23-15-313 to elect to act as a temporary municipal committee before the filing deadline. It suggests that use of in house absentee ballots solves one of the problems created if temporary committees are allowed to form after the deadline. This suggestion merely highlights the practical problems such a rule would invite in future elections and why the Legislature added 5 On May 5, 2014, Powell s counsel received a copy of a letter from the Election Commission s counsel addressed to Mississippi Supreme Court Clerk Kathy Gillis. This letter, sent pursuant to MRAP 28(k), contained, inter alia, citations to the Mississippi Code and the Constitution of the Democratic Party of the State of Mississippi. The letter further stated that these citations were being provided to this Court to show that the Humphreys County Democratic Executive Committee had been properly organized as a County Executive Committee when it acted on March 22, 2013 to purportedly qualify Miller as a Democratic candidate. Powell does not contend, and has never contended, that the Humphreys County Democratic Executive Committee was somehow improperly formed or organized. It has been organized for years. The question of its organization is not an issue on this appeal. Instead, the issue here is whether it acted in a timely fashion to be able to qualify Miller as a Democratic candidate for the office of Mayor of Isola. Just as Powell was about to file this Reply, his counsel received a copy of a second letter from the Election Commission s counsel to Ms. Gillis. The AG s opinion cited therein is factually distinguishable as there was no question that the Republican municipal executive committee was properly formed and authorized to certify nominees. There, the alleged irregularity occurred after proper formation of the committee. Here, a legitimate temporary municipal executive committee was never formed. - 3 -

the within 30 days of requirement to the statute. The Court should not accept the Election Commission s invitation to step down the slippery slope. The Election Commission seeks to obfuscate the issues by blaming the municipal clerk. It argues that the municipal clerk has an affirmative duty under 23-15-309 to ascertain that a municipal executive committee is in place before accepting qualifying papers. 6 Appellee s Brief at page 27. Under the plain language of the statute, and in the opinion of the Attorney General, however, it is not the responsibility of the clerk to determine at the time of a filing whether a committee exists, but merely to accept the filing and to process it according to law. Miss. Att'y Gen. Op. 2001-0155, 2001 WL 334174, Bowman, at *1 (March 16, 2001). The Attorney General (not Powell) has likewise recommended that the county committee provide written notice of the temporary committee s formation to the municipal clerk. Ashford op. at *1. Whether written or not, the requirement of a public notice in 23-15-313(1) indicates that some form of notice should be provided. Notably, 23-15-309(3) instructs the clerk to forward qualifying papers and fees to the secretary of the proper municipal executive committee, not to the county executive committee, indicating that the county committee must make it known that it is acting as the temporary municipal committee. (Emphasis added.) Finally, the Election Commission argues that Miller relied on the municipal clerk s acceptance of her qualifying papers and communication regarding the need for a money order instead of cash as indications that Miller would be entitled to run as a Democratic candidate, citing the principles of equitable estoppel in Mayor & Bd. Of Aldermen, City of Clinton v. Welch, 888 So. 2d 416 (Miss. 2004). Aside from the fact that Welch involved zoning, not elections, and completely dissimilar facts, the plaintiffs there relied on the representations of a city employee, acting as an agent of the city, that their proposed tree house was legally permissible. In contrast, 6 While the AG has recommended that municipal clerks determine if an executive committee exists prior to accepting qualifying papers and fees, it is plainly not a statutory requirement. See Miss. Att'y Gen. Op., 2013-00121, 2013 WL 2200417, Ashford, at **1-2 (April 22, 2013). - 4 -

the municipal clerk is not an agent of the Humphreys County Executive Committee, who had the ultimate responsibility under our statutory scheme to decide whether or not to act as the temporary municipal executive committee. Because it did not act until after the qualifying deadline, it could not properly qualify Miller as the Democratic nominee, irrespective of any action or inaction by the clerk. IV. A SPECIAL ELECTION IS NOT REQUIRED. The Election Commission argues that this Court is compelled to order a special election based on Stringer v. Lucas, 608 So. 2d 1351 (Miss. 1992). However, Stringer is distinguishable for several reasons. First, it concerned the candidate s personal qualifications. In contrast, the present case concerns whether the county executive committee was in a position to legitimately certify a party nominee in the first place. Because it was not, the issue of Miller s personal qualifications was never legitimately reached. In other words, Miller was never in a position to be disqualified as was the candidate in Stringer. 7 Second, the statute at issue in Stringer Miss. Code Ann. 23-15-217 specifically provides that a vote cast for an election commissioner while in office is illegal. Id. at 1358. The Court s decision thus turned on illegal votes. The Court explained: Stringer, as a member of the Bolivar County Election Commission, is not eligible to run in the mayoral race. All votes cast for Stringer were illegal. The lower court erred, however, in its determination that a special election should not be held. Over forty (40) percent of the votes cast were illegal and enough illegal votes were cast to change the ultimate result of the election. Id. at 1358 (emphasis added). Here, there is no statute deeming votes cast to be illegal. The Election Commission argues that the requirement of a special election in Miss. Code Ann. 23-15-937 evidences a public policy favoring special elections, yet there is no indication that the requirement should be expanded beyond the specific circumstance addressed in that 7 The only similarity between Stringer and Miller is that neither should have been listed on the general election ballot. - 5 -

statute, i.e., when the contestant in a primary election contest prevails against a contestee who has taken office. Contrary to the Election Commission s argument, this Court has clearly stated that requiring a special election is a last resort to be avoided if at all possible. Harpole v. Kemper County Democratic Executive Comm., 908 So. 2d 129, 137 (Miss. 2005). This is especially true when there was only one candidate who should have been listed on the general election ballot. Smith v. Hollins, 905 So. 2d 1267, 1277 (Miss. 2005) (en banc) (on r hg). For this reason, Powell should be allowed to assume the mayor s office without any further action. Id. CONCLUSION The issue before this Court is plain and the proper resolution is clear. The Election Commission contends that, when a county executive committee decides to act as a temporary municipal executive committee, it is not required to be in place as a temporary municipal executive committee prior to the candidates qualifying deadline, but only before an election in order to qualify its party s candidates. This contention lacks any legal foundation. As was plainly demonstrated by the official Attorney General s Opinion requested and received by City Clerk Ashford, accepting this proposition would render impossible the timely performance (or the performance at all) of preparation of ballots, dissemination of absentee ballots, and other preelection necessities. This construction of the statute would effectively contain no time constraints for a political party s qualification of its candidates, and the party, if it chose to do so, could literally qualify its candidate on the day before the election. The concept of reductio ad absurdum would aptly apply to such an outcome. The only rational construction of the law applicable to this action is that, when the Humphreys County Democratic Executive Committee decided to exercise its discretion to act as the Temporary Municipal Executive Committee for the Town of Isola, it was required to do so within the same time frame as is required of a true - 6 -

Municipal Executive Committee before the expiration of the candidate qualifying deadline. This, it clearly failed to do. For the reasons expressed in this Reply, and expressed in more detail in Powell s initial brief, it is respectfully submitted that Miller was improperly qualified as a candidate by the Isola Municipal Election Commission and that, as the only validly qualified candidate for the office of Mayor of the Town of Isola, Appellant Dimp Powell should be declared to be the Mayor of Isola, with no further proceedings being required. This, the 7th day of May, 2014. RESPECTFULLY SUBMITTED, s/kate Margolis Kate Margolis (MSB #99625) BRADLEY ARANT BOULT CUMMINGS LLP 188 E. Capitol Street, Suite 400 Post Office Box 1789 Jackson, MS 39215-1789 Telephone: 601.948.8000 Facsimile: 601.948.3000 One of the Attorneys for Dimp Powell OF COUNSEL: Andrew N. Alexander III (MSB #1310) Lake Tindall LLP Post Office Box 918 Greenville, MS 38702-0918 Telephone: 662/ 378-2121 Facsimile: 662/378-2183 - 7 -

CERTIFICATE OF SERVICE I, Kate Margolis, hereby certify that I have this date served the above and foregoing on the following person via the MEC system: Samuel L. Begley, Esq. Begley Law Firm PLLC P. O. Box 287 Jackson, MS 39205-0287 Counsel for Appellee Municipal Election Commission and the following person by United States Mail, first-class postage prepaid and addressed to their regular mailing address: Honorable Jannie M. Lewis Circuit Court Judge for Humphreys County P.O. Box 149 Lexington, MS 39095 This 7th day of May, 2014. s/kate Margolis KATE MARGOLIS - 8 -