E-Filed Document Jul 26 2016 13:13:30 2015-EC-01677-SCT Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI TASHA DILLON APPELLANT vs. NO. 2015-CA-01677 DAVID MYERS APPELLEE On Appeal From the Circuit Court of Pike County, Mississippi Cause Number 15-172-PCT Honorable James D. Bell Reply Brief of Appellant Tasha Dillon Oral Argument Requested ANTHONYR. SIMON (MS BAR 10009) PIETER TEEUWISSEN (MS BAR 8777) SIMON & TEEUWISSEN, PLLC 621 EAsT NORTHSIDE DRIVE JACKSON, MISSISSIPPI 39206 PHONE: 601-366-8400 COUNSEL FOR APPELLANT
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 Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: Tasha Dillon Appellant Pieter Teeuwissen, Esq. Anthony R. Simon, Esq. Counselfor Appellant David Myers Appellee David Baria, Esq. Brandon Jones, Esq. Counselfor Appellee Board of Election Commissioners of Pike County, and Pike County Circuit Clerk Roger Graves Intervenors CharlesWayne Dowdy, Esq. Counselfor Intervenors Hon. James D. Bell, Special Judge Respectfully Submitted, Tasha Dillon, Appellant By: ls/pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon ll
TABLE OF CONTENTS TITLE CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE ISSUES STATEMENT REGARDING ASSIGNMENT AND ORAL ARGUMENT INTRODUCTION PAGE ii lll IV 1 2 3 REPLY ARGUMENT I. The Trial Judge erred by not exercising jurisdiction 3 3 II. Myers' Defense of the County Election Officials is Without Substance 7 CONCLUSION CERTIFICATE OF SERVICE 8 9 iii
TABLE OF AUTHORITIES CASES PAGES Barbour v. Gunn, 890 So.2d 843 (Miss. 2004)... 5, 6 Cameron v. Mississippi Republican Party, 890 So.2d 836, 840 (Miss. 2004)... 5 Esco v. Blackmon, 692 So.2d 74, 77-78 (Miss. 1997)... 5 Foster v. Harden, 536 So.2d 905 (Miss. 1998)...,4, 5, 6 Graham v. State, 2014-KA-01783-COA (Miss. Ct. App. 2016) (Miss. 2013)... 5, 6 Lewis v. Forest Family Practice Clinic, PA., 124 So.3d 654, 658 (Miss. 2013)... 5 Mississippi Dept. of Revenue v. AT&T Corp., 101 So.3d 1139, 1143 (Miss. 2012)...... 6 OTHER AUTHORITIES: MISS. CODE ANN. 23-15-927... 1, 2 Mrss. CoDEANN. 23-15-951... 4 MISS. CODE ANN. 23-15-955... 4 Mississippi Constitution of 1890 Article 4, 38... 2, 3, 4,5 Mississippi House of Representatives Internal Rule 104B...,4, 5 Mississippi Rules of Civil Procedure 24(2)... 7 Mississippi Rules of Civil Procedure 81(a)(4)... 7 w
STATEMENT OF THE ISSUES The issues that this Court should resolve on appeal are: I. MISS. CODE ANN. 23-15-927 establishes judicial review of primary election disputes where a party executive committee fails to act. The incumbent sought resolution in the Legislature, who subsequently declined to review a primary election contest. Therefore, the trial court's procedural dismissal without holding an evidentiary hearing was erroneous. II. MISS. CODE ANN. 23-15-927 establishes the role of election comm1ss1oners during the proceedings of a special tribunal. Intervention as parties by the Election Commission and Circuit Clerk is contrary to statutory responsibilities. Therefore, the trial court erred by allowing intervention.
STATEMENT REGARDING ASSIGNMENT AND ORAL ARGUMENT The Supreme Court should retain jurisdiction of this appeal. This appeal involves resolving ambiguity as to whether the proper forum for reviewing a primary election challenge for a seat in the Mississippi House of Representatives is the Judiciary or the Legislature. Resolving this issue involves reconciling ART. 4, 38 of the MISSISSIPPI CONSTITUTION of 1890 with MISS. CODE ANN. 23-15-927 (Supp. 2014) and other applicable authority. This determination is a fundamental and urgent issue of broad public importance requiring ultimate determination by the Supreme Court. For these same reasons, Appellant Dillon requests oral argument. 2
INTRODUCTION The parties to this legislative election contest agree that inquiry in this matter begins with MISS. CONST. ART. 4, 38. From that provision, the parties' analysis diverges distinctly. Appellant Dillon urges this Court to consider applicable statutes and case law precedent. Appellee Myers, on the other hand, urges a meandering analysis through the statutes and application of different case law. The difference, of course, is that Appellant Dillon seeks a hearing on the merits of this election contest; Appellee Myers urges no such factual review is necessary. The result is that if Myers' argument is persuasive, then the election is not subject to review and it will become impossible to discern the will of the voters. REPLY ARGUMENT I. The Trial Judge erred by not exercising jurisdiction Dillon's Appellate Brief explained that while the MISSISSIPPI CONSTITUTION ART. 4, 38 1 vests the House with the power to decide its members, the House has in turn reserved this power for general election contests only while delegating to the courts via statute and internal rule resolution of primary election contests. Dillon Br. at 8-13. Myers' Brief repeatedly ignores this delegation by the House and, instead, argues for broad application of case law that pre-dates revised election statutes and subsequent authority on point. 1 "Each house shall elect its own officers, and shall judge of the qualifications, return and election of its own members." 3
Myers argues that MISS. CODE ANN. 23-15-951 carves out an exception via the "except as otherwise provided by 23-15-955" language. On the contrary, 23-15-955 returns the review to the 23-15-951 framework. Section 23-15-955 does two things: First, it codifies MISSISSIPPI CONST. ART. 4, 38; and, Second, it states that "[T]he legislative resolution of the election contest shall be conducted in accordance with procedures and precedents established b)'. the House of Representatives or the Senate, as the case may be." (emphasis supplied). Myers does not address this second essential statutory element preferring, instead, an incomplete analysis. This is understandable since the "procedures and precedents" of the House as found in both 23-15-951 (precedent) and House Rule 104B (procedure) support Dillon's position. Rule 104B specifically states that "[A]nyone desiring to contest the election, other than a primary election, of a member returned as elected to the Mississippi House of Representatives" may file a petition before the House (emphasis added). Notably, Myers does not reference or address House Rule 104B. However, Rule 104B specifically opts-out primary election contests, and thus, the "except as provided" language doesn't create the exception proffered by Myers. Rather, a reading of 23-15-951 in context with House Rule 104B creates the "constitutional harmony amongst the various branches of government" as referenced in Myers' Brief, Footnote 8. 2 The House retains jurisdiction over general election contests, but the House assigns resolution of primary election contests to the courts. 2 As the Foster dissent notes (Zucarro, J. joined by Chief Justice Lee and Sullivan, Robertson, J.), the Foster majority departed from "precedent barely a year old and from a premise fundamental to our law... the most that may be said for the view of today's majority is that 38 of our Constitution establishes a regime of concurrent jurisdiction." Foster at 908. 4
Myers rests heavily on Foster v. Harden, 536 So.2d 905 (Miss. 1998). The 5-4 Foster decision appears at first blush indistinguishable from the present appeal. The Hinds County Circuit Court granted Harden' s motion to dismiss based on ARTICLE 4, 38, and dismissal was affirmed on appeal. Closer inspection, however, reveals Foster is not on point. First, Foster involved only a qualifications challenge, not a challenge to election day activities and vote counts. Qualification issues are generally known pre-election; voting day activities and counts are generally identified postelection. Second, Foster filed her court challenge to qualifications after the elections3. Third, unlike Dillon, Foster failed to cite any statute or House Rule which established court jurisdiction or which interpreted ARTICLE 4, 38. Fourth, Foster pre-dates both Barbour v. Gunn and the statutes (as amended) cited by Dillon. Finally, the Foster language is indeed self-limiting in its statement that "... the circuit court had no jurisdiction to determine the issue here involved." Foster at 907. Myers' porous position fails upon thorough analysis, and thus, his argument fails in its entirety. Nevertheless, a couple of other positions raised by Myers warrant a brief reply. Myers contends in Footnote 2 that the Mississippi Democratic Party, "on information and belief' considered Dillon's Petition. This is news to Dillon, and this was not raised before either the trial court or the House of Representatives. Thus, whether the Executive Committee did or did not consider Dillon's Petition is inapposite to these proceedings; at best it's waived. See generally, Lewis v. Forest Family Practice Clinic, P.A., 124 So.3d 654, 658 (Miss. 2013); Graham v. State, 2014-3 Esco v. Blackmon, the other case on which Myers relies heavily, is likewise in a different procedural posture than the case at bar. Justice Carlson noted this important procedural distinction in Cameron v. Mississippi Republican Party, 890 So.2d 836, 840 (Miss. 2004). Esco was afforded a hearing before the House and lost. In the present matter, the House followed its procedural Rule 104B and declined to hold a hearing. 5
KA-01783-COA (Miss. Ct. App. 2016) (,i 20, failure to raise an argument before the circuit court procedurally bars the issue on appeal). Myers attempts to gloss over the case most opposite to his incomplete position, Barbour v. Gunn, 890 So.2d 843 (Miss. 2004). Gunn, according to Myers, is distinguishable because constitutional jurisdiction was not raised. Appellant's Br. at 10. This one-sentence dismissal ignores the fact that the Supreme Court has a sua sponte obligation to examine jurisdiction. As Justice Randolph emphasized in Mississippi Dept. of Revenue v. AT&T Corp., 101 So.3d 1139, 1143 (Miss. 2012), "[T]his Court has previously stated that: [o]n every writ of error or appeal, the first and fundamental question is that of jurisdiction... This question of the court is bound to ask and answer for itself, even when not otherwise suggested... (internal citations omitted). Hence, Myers' attempt to distinguish the case on point, Gunn, requires this Court to acknowledge it failed in its fundamental duty to consider jurisdiction. Myers extends this argument by stating that there is no "single instance where a different conclusion was reached when the constitutional jurisdiction of the House or Senate was raised." Myers' Br. at 10. Nothing in Gunn or other election case law citing Gunn supports such a leap that this Court has routinely ignored the presence of a jurisdiction issue4. Myers' arguments are misplaced. Myers is asking this Court to establish a procedural dilemma which would leave Dillon without an opportunity to pursue a remedy. Myers apparently doesn't want the facts presented. Why? If Dillon's 4 As the majority notes in Foster, "[T]o be sure, this Court is bound to raise jurisdictional issues on its own... ". 6
allegations are without factual support, Myers should welcome independent review pursuant to this Court's precedent. II. Myers' Defense of Intervention by County Election Officials is Without Substance Myers, apparently concerned that this Court might actually return this matter to the trial court for a hearing on the merits, staunchly defends the intervention by the Circuit Clerk and Election Commissioners ("Election Officials"). Myers makes much ado with Dillon's allegations of inefficiency or impropriety, yet fails to cite a single case in support of intervention. Likewise, Myers does not address any of the cases cited by Dillon as opposing intervention. Instead, Myers places emphasis on M.R.C.P. 24(2), permissive intervention, arguing that intervention is permissible because Dillon made allegations in her petition (as required). AB with Myers "constitutional harmony" argument, Myers "Election Officials" argument is incomplete. This Court need not weigh Rule 24 permissive intervention, as this Court has already decided in M.R.C.P. 81(a)(4) that the rules of civil procedure are of "limited applicability" in actions "generally governed by statutory procedures" such as "proceedings pertaining to election contests". AB Dillon explains in her Appellate Br. at 13-14, the election officials' duties are prescribed by statute. Rule 81 yields the Mississippi Rules of Civil Procedure to statutes in election contests, and thus Rule 24 cannot create a new procedure inconsistent with the statutes. Myers offers nothing to counter Rule 81 and the statutes/case law cited by Dillon, and, therefore, this issue is arguably confessed. 7
CONCLUSION For the foregoing reasons, as well as those detailed Appellee's Brief, this Court should return this matter to the trial court for a hearing on the merits. Any other decision results in this legislative election contest dying without any merits review. Discerning the will of the voters in this matter deserves better than that. RESPECTFULLY SUBMI'ITED, this the 26th day of July, 2016. Tasha Dillon, Appellant By: ls/pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon 8
CERTIFICATE OF SERVICE The undersigned certifies that he has this day electronically filed the foregoing document with the Clerk of the Court using the Court's electronic filing system (ECF), which sent notification of such filing to all attorneys of record as follows: Wayne Dowdy, Esq. Dowdy, Cockerham &Watt 215 East Bay Street Magnolia, Mississippi 39652 David Baria, Esq. Baria-Jones, PLLC 544 Main Street Bay Saint Louis, Mississippi 39520 Brandon Jones, Esq. Baria-Jones, PLLC 4316 Old Canton Road, Suite 100A Jackson, Mississippi 39211 The undersigned further certifies that he has this day caused to be mailed by United States Mail, postage pre-paid, a true and correct copy of the above and foregoing document to the following: Hon. James D. Bell, Special Judge 318 South State Street Jackson, Mississippi 39201-4417 Respectfully submitted this the 26th day of July, 2016. ls/pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon 9