APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED

E-Filed Document Mar 18 2016 11:38:59 2015-CA-01526 Pages: 20 MISSISSIPPI SUPREME COURT MISSISSIPPI COURT OF APPEALS NO. 2015-CA-01526 RICKEY W. THOMPSON APPELLANT VS. ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, LEE COUNTY DEMOCRATIC PARTY EXECUTIVE COMMITTEE, LEE COUNTY ELECTION COMMISSION APPELLEES APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED JIM WAIDE, MSB NO. 6857 WAIDE & ASSOCIATES, P.A. 332 NORTH SPRING STREET TUPELO, MS 38804-3955 POST OFFICE BOX 1357 TUPELO, MS 38802-1357 (662) 842-7324 / TELEPHONE (662) 842-8056 / FACSIMILE EMAIL: waide@waidelaw.com CARROLL E. RHODES, MSB NO. 5314 LAW OFFICES OF CARROLL RHODES POST OFFICE BOX 588 HAZEHURST, MS 39038-1588 (601) 894-4323 / TELEPHONE (601) 894-1464 / FACSIMILE EMAIL: crhode@bellsouth.net

WILLIE C. ALLEN, MS Bar No. 101909 ALLEN LAW FIRM, PLLC POST OFFICE BOX 3032 TUPELO, MS 38803-3032 (662) 269-3383 / TELEPHONE (662) 510-0422 / FACSIMILE EMAIL: willie@allenlawfirm.org ATTORNEYS FOR APPELLANT

CERTIFICATE OF INTERESTED PARTIES 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 Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Rickey Thompson, Appellant; 2. Jim Waide, Attorney for Appellant; 3. Waide & Associates, P.A., Attorneys for Appellant; 4. Carroll Rhodes, Attorney for Appellant; 5. Law Offices of Carroll Rhodes, Attorneys for Appellant; 6. Willie C. Allen, Attorney for Appellant; 7. Allen Law Firm, Attorneys for Appellant; 8. Attorney General of the State of Mississippi, Appellee; 9. Harold Edward Pizzetta, III, Attorney for Appellees Attorney General and Lee County Election Commission; 10. Lee County Election Commission, Appellee; 11. William C. Murphree, Attorney for Appellee Lee County Election Commission; and 12. Gary L. Carnathan, Attorney for Appellee Lee County Election Commission. /s/ Jim Waide JIM WAIDE i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... I TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iii-iv STATEMENT OF THE ISSUES...v STATEMENT REGARDING ORAL ARGUMENT... vi STATEMENT OF THE CASE...1 SUMMARY OF THE ARGUMENT...1 ARGUMENT I...2 THOMPSON MEETS THE ONLY REQUIREMENTS FOR THE OFFICE OF JUSTICE COURT JUDGE SPECIFIED BY THE MISSISSIPPI CONSTITUTION. THEREFORE, THOMPSON IS ELIGIBLE TO SERVE AS JUSTICE COURT JUDGE. NO STATUTE CAN VARY THE QUALIFICATIONS FOR OFFICE SET IN THE STATE CONSTITUTION. ARGUMENT II...8 THE PROCEDURES PROVIDED TO REMOVE THOMPSON FROM RUNNING FOR OFFICE WERE NOT FOLLOWED. THUS, NEITHER THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE NOR THE LEE COUNTY ELECTION COMMISSION HAD THE AUTHORITY TO DISQUALIFY THOMPSON. CONCLUSION...10 CERTIFICATE OF SERVICE...12 ii

TABLE OF AUTHORITIES CASES: STATE: Children s Medical Group, P.A. v. Phillips, 940 So.2d 931 (Miss. 2006)...1 Gelch v. State Board of Elections, 482 A.2d. 1204 (R.I. 1984)... 6-7 Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)...7 Mississippi Commission on Judicial Performance v. Darby, 143 So.3d 564 (Miss. 2014)... 3-4 Mississippi Com n of Judicial Performance v. Thompson, 169 So.3d 857 (Miss. 2015)...1 Montgomery v. Lowndes County Democratic Executive Committee, 969 So.2d 1 (Miss. 2007)... 2-3 People ex rel. Bagshaw v. Thompson, 130 P.2d 237 (Cal. App. 1942)...2, 7 Proctor v. Daniels, 392 S.W.3d 360 (2010)...6 Recall Bennett Committee v. Bennett, 196 Or. 299, 249 P.2d 479 (1952)... 6-7 Saxon v. Harvey, 223 So.2d 620 (Miss. 1969)...2 State v. Crump, 183 S.W. 505 (1916)...7 Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505 (1915)...7 Wynn v. State, 7 So. 353 (1890)...4 FEDERAL: Fuentes v. Shevin, 407 U.S. 67 (1972)...10 OTHER AUTHORITIES: MISS. CODE ANN. 9-19-17... 2-3 MISS. CODE ANN. 23-15-191... 8-9 MISS. CODE ANN. 23-15-239...8 iii

MISS. CODE ANN. 23-15-305...8 MISS. CODE ANN. 23-15-307...9 MISS. CODE ANN. 23-15-359...3, 9 MISS. CODE ANN. 23-15-963...9 MISS. CONST. 171... 1-3, 5 MISS. CONST. 177(A)...2, 6 MISS. CONST. 250...3 MISCELLANEOUS C.J.S. Judges 141...6 David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1 (1992)...4 The Free Dictionary...6 iv

STATEMENT OF THE ISSUES 1. Thompson meets the only requirements for the office of justice court judge specified by the Mississippi Constitution. Therefore, Thompson is eligible to serve as justice court judge. No statute can vary the qualifications for office set in the state constitution. 2. The procedures provided to remove Thompson from running for office were not followed. Thus, neither the Mississippi Commission on Judicial Performance nor the Lee County Election Commission had the authority to disqualify Thompson. v

STATEMENT REGARDING ORAL ARGUMENT This case concerns whether a statute may impose qualifications for office in addition to those listed in the state constitution. Additionally, it presents the issue of whether a judge s being removed from an office prohibits that judge from running for that office. These are important questions affecting the right of citizens to vote for the candidate of their choice. Oral argument is warranted. vi

STATEMENT OF THE CASE In the August 2015 Lee County Democratic Primary, Plaintiff/Appellant Rickey Thompson (hereinafter Thompson ) received fifty-five percent (55%) of the vote over four (4) opponents. R. 4-5. 1 Nevertheless, on recommendation of the Mississippi Attorney General, the Lee County Democratic Executive Committee nominated the primary election runner-up as the Democratic nominee. R. 42. The Lee County Election Commission then placed the runner-up, not Thompson, who was the winner of the majority of the votes, on the general election ballot. R. 43. Defendants refused to allow Thompson to be the Democratic party nominee because the Mississippi Supreme Court had removed Thompson from office. See Mississippi Com n of Judicial Performance v. Thompson, 169 So.3d 857 (Miss. 2015). Thompson filed a complaint, R. 12-45, and a motion for preliminary injunction, R. 46-52, in the Circuit Court of Hinds County, Mississippi. He sought to be placed on the ballot as the Democratic nominee. Following briefing, R. 53-85, and oral argument, Circuit Court Judge William A. Gowan denied Thompson s request for a preliminary injunction. The circuit court, sua sponte, dismissed the case. R. 124-25. Thompson timely appealed. R. 126-28. 2 SUMMARY OF THE ARGUMENT MISS. CONST. 171 establishes the qualifications for a justice court judge. This list of qualifications contains no requirement that one has not been previously removed from office. MISS. 1 R. signifies record compiled by the Circuit Clerk. 2 Because the circuit court dismissed the case based on the pleadings only, this Court must accept as true the allegations of the complaint. Children s Medical Group, P.A. v. Phillips, 940 So.2d 931, 934 (Miss. 2006). 1

CODE ANN. 9-19-17, however, adds this as a qualification. Because a constitutional provision trumps a conflicting statute, MISS. CODE ANN. 9-19-17 is unconstitutional. This result is not changed by MISS. CONST. 177(A), which allows the Supreme Court to remove a judge from office. The Supreme Court removed Thompson from only the term of office which he held. One term of an office is separate and distinct from other terms of the same office. People ex rel. Bagshaw v. Thompson, 130 P.2d 237, 241 (Cal. App. 1942). ARGUMENT I. THOMPSON MEETS THE ONLY REQUIREMENTS FOR THE OFFICE OF JUSTICE COURT JUDGE SPECIFIED BY THE MISSISSIPPI CONSTITUTION. THEREFORE, THOMPSON IS ELIGIBLE TO SERVE AS JUSTICE COURT JUDGE. NO STATUTE CAN VARY THE QUALIFICATIONS FOR OFFICE SET IN THE STATE CONSTITUTION. MISS. CONST. 171 establishes the qualifications for the position of justice court judge. These qualifications are (1) having resided two (2) years in the county next preceding his selection and (2) [being a] high school graduate. MISS. CODE ANN. 9-19-17, however, adds an additional qualification, stating that [a] justice or judge removed by the supreme court... is ineligible for judicial office,.... A statute cannot modify or alter the Constitution. The wisdom of the drafters of our Constitution is not subject to question by this Court, and is to be modified or altered by amendment only. Saxon v. Harvey, 223 So.2d 620, 624 (Miss. 1969). In Montgomery v. Lowndes County Democratic Executive Committee, 969 So.2d 1 (Miss. 2007), plaintiff Montgomery sought to qualify as a candidate for the position of justice court judge in District 3 of Lowndes County. Montgomery was a resident of that county, but admits she was 2

not a resident within District 3. Id. The Lowndes County Democratic Executive Committee disqualified her based upon MISS. CODE ANN. 23-15-359(8) (2001) which required the appropriate election commission to determine whether a candidate was a qualified elector of the... county or county district they seek to serve. Montgomery attacked this provision because it added a qualification for office not found in MISS. CONST. 171. The Supreme Court concluded: This [Lowndes County Democratic Executive Committee s] reasoning is based upon the assumption that the Legislature could change the requirements of those seeking the office of justice court judge. This is not the case. Montgomery, 969 So.2d at 2-3. The three (3) judge dissent in Montgomery was based upon a constitutional argument. The dissenters argued that MISS. CONST. 250 provides that only qualified electors are eligible for office, and to be a qualified elector, one must be a resident of a particular district. See Montgomery, 969 So.2d at 4-5 (Randolph, J., dissenting). Not a single justice disagreed with the majority s opinion that the constitutional requirements for the office of judge trump any additional statutory requirements. 2014), held: Mississippi Commission on Judicial Performance v. Darby, 143 So.3d 564, 568 (Miss. The jointly recommended sanction [to be removed from office] requires us to recognize the limits of our constitutionally vested powers in these matters. Included in the recommended sanctions, agreed to by Judge Darby, is that she be prohibited from holding judicial office in the future. Our constitution does not expressly empower this Court to order such a prohibition. Darby noted the existence of MISS. CODE ANN. 9-19-17 in a footnote. This footnote prompted Justice Dickerson to write that the majority had pointed out that neither this Court nor 3

the Commission on Judicial Performance has the authority to impose a sanction that prohibits a person from seeking and holding a judicial office in the future. Darby, 143 So.3d at 571. In Wynn v. State, 7 So. 353 (1890), the issue was whether a state statute can alter the state constitution s requirements for qualifications of the office of superintendent of education by adding an educational requirement. Wynn held: It is thus seen that the only safe course is to deny the right of the legislature to add to any office created by the constitution any qualifications for the incumbent not imposed by the constitution itself. As offices were created by it, and the subject of qualification dealt with, and special requirements made for certain offices, and general requirements as to all, it must be assumed that it prescribes all that was intended, and that none can be added, however appropriate they may be. Wynn, 7 So. at 355. Wynn is similar to Thompson s case because the Legislature imposed a requirement which many would consider just and proper. It may be just and proper that a judge removed from office by the Mississippi Supreme Court should never again hold that office. Wynn established, however, that a statute s being just and proper does not permit it to override the state constitution. The interpretation urged by Defendants diminishes the voting power of the voters of District 4 of Lee County. This diminishment of the right of the voters to choose their judges is inconsistent with Jacksonian democracy principles which the constitutional framers selected to govern how judges are chosen. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1 (1992), notes that the Mississippi Constitution, as presently written, promotes democratic values over countervailing fears of partisan politics influencing the selection of judges: Conflicting and impassioned positions regarding judicial selection quickly became the cornerstone of the delegates' [to the 1932 constitutional convention] campaigns. 4

A conservative faction, disparagingly referred to as aristocrats, favored the continued selection of judges by legislative election,... The aristocrats feared that an elected judiciary would be subject to partisan influences and corruption. The Jacksonians, known as whole-hogs, insisted that all public officials, including judges, should be elected by the people... In a clear portent of what was to come, the whole hogs won a majority of the delegate seats. At the 1832 convention, although most of the democratic ideals incorporated into the new constitution kindled little opposition, the subject of an elective judiciary was, as expected, highly controversial. Following several clashes in the judiciary committee and on the convention floor, Jacksonian democracy triumphed, and the new constitution provided that all judges, as well as virtually all other public officials, would be chosen by popular election. Mississippi had become the first state in the nation to establish a completely elective judiciary, despite predictions of dire consequences by its opponents. Case, Id., at 5-6 (footnotes omitted). 3 Interestingly, the criticisms of an elected judiciary are especially inappropriate when considering the election of justice court judges. Justice court judges decide only small claims, MISS. CONST. 171, and are elected from small districts where the voters know the candidates best. Id. An argument that an outside agency, such as the Mississippi Commission on Judicial Performance 3 Mr. Case describes the history of elected judges in Mississippi succinctly: By 1890, the demand to replace the Reconstruction constitution had become unyielding, and a new constitutional convention was called. Although the merits of an elective versus appointive judiciary were again vigorously debated, the 1890 constitution made no change in the method of judicial selection. The issue remained unsettled, however, and was the subject of much discussion during the next three decades. In 1910, the legislature submitted to the voters a proposed constitutional amendment making circuit and chancery court judgeships elective. The amendment was approved and formally inserted into the constitution in 1912. Another proposed amendment requiring the election of supreme court justices was approved by Mississippi voters in November 1914, and became part of the constitution in 1916. Mississippi's principal judicial offices have remained elective positions ever since. Id. 6-7 (footnotes omitted). 5

or the Mississippi Supreme Court, should disqualify one from seeking office in the future is especially inappropriate in the case of justice court judges. Justice court judges are chosen by only their closest neighbors, who are likely to have far more knowledge of their performance than either the Mississippi Commission on Judicial Performance or the Mississippi Supreme Court, which, by nature, can consider only a few selected cases out of the thousands over which these judges preside. Defendants rely upon the Arkansas Supreme Court s decision in Proctor v. Daniels, 392 S.W.3d 360 (2010), which held that a constitutional provision allowing a judge to be removed from office, as does MISS. CONST. 177(A), means that the removal is permanent. Proctor was cited with approval in C.J.S. Judges 141. That Arkansas Supreme Court decision is in error. To remove from office is to remove from the office one currently holds. The term remove means to move from a place or position occupied or to dismiss from an office or position. The Free Dictionary, Remove. One cannot be removed from an office (a justice court term in the future) which one has never held. If the term removal means to prevent from holding the office in the future, Darby would not have stated that the constitution does not expressly empower.... the Supreme Court to prohibit one from holding any future judicial office. Darby, 143 So.3d at 568, 571. The correct interpretation is found in Gelch v. State Board of Elections, 482 A.2d. 1204, 1211 (R.I. 1984), which held: Generally, a removal from office bars the removed officer from an election or appointment to fill the vacancy for the unexpired term, but * * * it does not disqualify him to take some other office or to be elected or appointed to a new term of the same office. Recall Bennett Committee v. Bennett, 196 Or. 299, 326, 249 P.2d 479, 492 (1952). The remainder of the existing term is, including its incidents and rights, * * * all the removal can act on or affect. Thompson v. Crump, 134 Tenn. 121, 132 33, 183 S.W. 505, 508 (1915). 6

In considering a statute allowing public officials to be removed from office for misconduct, State v. Crump, 183 S.W. 505, 508 (1916), held: The Ouster Act was passed to remove unworthy public servants from offices they held, not to contest their qualifications for other offices or other terms of the same office. No judgment of disqualification to hold any other office or any other term of the same office can be pronounced in an ouster suit. (Emphasis added). As put in People ex rel. Bagshaw v. Thompson, 130 P.2d 237, 241 (Cal. App. 1942): One term of an office is separate and distinct from other terms of the same office. For the Supreme Court to determine who may run for office is to diminish the power of voters. The right of voting is a fundamental political right, because [it is] preservative of all rights. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966). [T]he right of suffrage is a fundamental matter in a free and democratic society. Id. Of course, in most cases, the fact that the Supreme Court has removed a judge from office is sufficient to persuade voters not to re-elect him or her. In the case, however, of a justice court judge, voters in a single district of a county are apt to know the judge well, and are in the best position to know whether he or she is suitable to serve as a judge in the future. In their brief below, Defendants emphasized that Thompson was guilty of many acts of misconduct. The Mississippi Supreme Court brief filed by Thompson s attorneys conceded judicial misconduct, assuming that the Mississippi Supreme Court would accept the version of the facts argued by the Mississippi Commission on Judicial Performance. See Brief of Thompson, R. 86-103. Thompson, on the other hand, filed an untimely pro se brief, contesting many of the facts which his attorneys had conceded, and the Supreme Court had found. R. 14-17. 7

In any event, the issue here is not whether Mississippi Supreme Court s fact-finding was correct. The issue is whether its decision precludes Thompson from again running for the office of justice court judge. ARGUMENT II. THE PROCEDURES PROVIDED TO REMOVE THOMPSON FROM RUNNING FOR OFFICE WERE NOT FOLLOWED. THUS, NEITHER THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE NOR THE LEE COUNTY ELECTION COMMISSION HAD THE AUTHORITY TO DISQUALIFY THOMPSON. Regardless of the merits of Thompson s claims, the procedures set forth for removing him from office were not followed. Mississippi law provides, by statute, that the winner of a party primary is the nominee of the party unless that winner is challenged by timely petition or loses at a hearing on that petition. MISS. CODE ANN. 23-15-305 provides that [t]he candidate who received the majority number of votes cast for the office which he seeks shall thereby become the nominee of his party for such office.... MISS. CODE ANN. 23-15-191 states that [a]ny candidate who receives the highest popular vote cast for the office which he seeks in the first primary shall thereby become the nominee of the party for such office; provided also it be a majority of all the votes cast for that office. No statute authorizes a political party to nominate anyone other than the winner of a primary. Under MISS. CODE ANN. 23-15-239(a), the appropriate election commission shall determine whether such candidate meets all other qualifications to hold the office he is seeking. The Lee County Election Commission may exercise that authority only in compliance with the procedures set forth in MISS. CODE ANN. 23-15-963(1), which states: 8

Any person desiring to contest the qualifications of another person who has qualified pursuant to the provisions of Section 23-15-359, Mississippi Code of 1972, as a candidate for any office elected at a general election, shall file a petition specifically setting forth the grounds of the challenge not later than thirty-one (31) days after the date of the first primary election set forth in Section 23-15-191, Mississippi Code of 1972. Such petition shall be filed with the same body with whom the candidate in question qualified pursuant to Section 23-15-359, Mississippi Code of 1972. No person filed a petition contesting the qualifications of Plaintiff Thompson, as required by MISS. CODE ANN. 23-15-963(1). Plaintiff Thompson was not afforded the hearing required by MISS. CODE ANN. 23-15-963(4), which reads as follows: Within ten (10) days of receipt of the petition described in subsections (1), (2) and (3) of this section, the appropriate election officials shall meet and rule upon the petition. At least two (2) days before the hearing to consider the petition, the appropriate election officials shall give notice to both the petitioner and the contested candidate of the time and place of the hearing on the petition. Each party shall be given an opportunity to be heard at such meeting and present evidence in support of his position. Without any formal petition and a hearing to disqualify Thompson, the Lee County Election Commission had no alternative but to place Thompson s on the ballot. This is consistent with the requirements of MISS. CODE ANN. 23-15-307, which reads: The name of any candidate shall not be placed upon the official ballot in general elections as a party nominee who is not nominated as herein provided, and the election of any party nominee who shall be nominated otherwise than as provided in this chapter shall be void and he shall not be entitled to hold the office to which he may have been elected. No political party shall be entitled to recognition, as such, in the appointment of the county or precinct election officers, unless it has made its nominations as herein provided. Defendants argue, however, that the above procedures need not be followed since it is apparent that Thompson was not qualified to hold office. As pointed out in Fuentes v. Shevin, 407 9

U.S. 67, 78 (1972), however, [t]he right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. In any event, it is not certain that Thompson would not have prevailed had the statutorilyrequired hearing been held. A hearing before the Election Commission may have reached a different result since the Election Commissioner would have heard both sides of the case rather than hearing only the opinion of the Attorney General. It is foreign to our system of justice to ignore statutory procedures. Defendants argument that procedural rules may be ignored in any case in which one side would clearly prevail makes a mockery of a government of laws. CONCLUSION Rickey Thompson met the only constitutional qualification to hold office for justice court judge. Even if he did not do so, the only statutory procedures providing for disqualifying him were not followed. Accordingly, this Court should reverse the decision of the circuit court and order a special election 4 for the office of justice court judge of Lee County, Mississippi. 4 The Attorney General, in arguing below that a preliminary injunction was not appropriate, argued that the appropriate remedy would be a special election. See Brief of Defendants, R. 80, noting that the Supreme Court may grant relief by ordering a special election.... 10

RESPECTFULLY SUBMITTED, this the 18th day of March, 2016. RICKEY THOMPSON, Appellant By: /s/ Jim Waide Jim Waide, MS Bar No. 6857 WAIDE & ASSOCIATES, P.A. 332 North Spring Street Tupelo, MS 38804-3955 Post Office Box 1357 Tupelo, MS 38802-1357 Telephone: (662) 842-7324 Telecopier: (662) 842-8056 Email: waide@waidelaw.com CARROLL E. RHODES, ESQ., NO. 5314 LAW OFFICES OF CARROLL RHODES POST OFFICE BOX 588 HAZEHURST, MS 39038-1588 (601) 894-4323 / TELEPHONE (601) 894-1464 / FACSIMILE EMAIL: crhode@bellsouth.net WILLIE C. ALLEN, MS Bar No. 101909 ALLEN LAW FIRM, PLLC POST OFFICE BOX 3032 TUPELO, MS 38803-3032 (662) 269-3383 / TELEPHONE (662) 510-0422 / FACSIMILE EMAIL: willie@allenlawfirm.org ATTORNEYS FOR APPELLANT 11

CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Harold Pizetta, Esq. Assistant Attorney General hpizz@ago.state.ms.us Gary Carnathan, Esq. Lee County Attorney carnathanlaw@redmagnet.com Bill Murphree, Esq. Attorney for Lee County Democratic Election Committee bmurphree@mitchellmcnutt.com Honorable Bill Gowan Hinds County Courthouse 407 East Pascagoula St. Jackson, MS 39205 THIS, the 18th day of March, 2016. /s/ Jim Waide JIM WAIDE 12