DOROTHY ANN GLENN IN THE SUPREME COURT OF MISSISSIPPI 1 NO.: 2013-IA-01112-SCT APPELLANT v. ANDREW POWELL APPELLEE BRIEF OF APPELLANT INTERLOCUTORY APPEAL ERIC C. HAWKINS Post Office Box 862 Green~ TE~~~ ORAL ARGUMENT REQUESTED
IN THE SUFREME COURT OF MISSISSIPPI NO.: 2013-IA-Ol112-SCT DOROTHY ANN GLENN PLAINTIFF, APPELLANT VERSUS ANDREW POWELL DEFENDANT,APPELLEE CERTIFICATE OF INTERESTED PARTIES I, Dorothy Ann Glenn, certify that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judge of this Court may evaluate possible disqualifications or recusal pursuant to Rule 28 of the Mississippi RuIes of Appellant Procedure. 1. Dorothy Ann Glenn, Appellant; 2. Andrew Powell, Appellee; 3. Eric C. Hawkins, Counsel for Appellant; 4. P. Caleb Koonce, Counsel for Appellee sf Dorothy Ann Glenn DOROTHY ANN GLENN
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES....i STATEMENT REGARDING ORAL ARGUMENT....ii TABLE OF CONTENTS....iii TABLE OF AUTHORITIES....iv STATEMENT OF TH ISSUES... v STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2-4 STANDARD OF REVIEW... 5 SUMMARY OF THE ARGUMENT... 6-7 ARGUMENT I... 8-10 THE LOWER COURT DID NOT HAVE JURISDICTION TO DECIDE A CONTEST OF QUALIFICATIONS OF CANDIDATES FOR PRIMARY ELECTION UNDER MISS. CODE ANN. SECTION 23-15-927 AS OPPOSED TO SECTION 23-15-961. ARGUMENT II... 10-11 THE LOWER COURT ERRED IN ORDERING A SPECIAL PRIMARY RUN-OFF ELECTION WITHIN TWO WEEKS BETWEEN THE TWO LOSING CANDIDATES. CONCLUSION....11 CERTIFICATE OF SERVICE....12 iii
TABLE OF AUTHORITIES SUPREME COURT CASES: Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). OTHER CITATIONS: Miss. Code Ann. 23-15-921 Miss. Code Ann. 23-15-927 Miss. Code Ann. 23-15-961 Miss. Code Ann. 23-15-963 iv
STATEMENT OF THE ISSUES 1. Whether the lower court had jurisdiction to decide a contest of qualifications of candidates for primary election under Miss. Code Ann. Section 23-15-927 as opposed to Section 23-15-961. 2. Whether the lower court erred in ordering a special primary run-off election within two weeks between the two losing candidates. v
STATEMENT OF THE CASE On May 16,2013, Andrew Powell, Appellee, filed his Petition for Judicial Review ofthe Democratic primary results for the election of the position of city councilman, ward 5 in the Circuit Court of Leflore County, Mississippi, against Petitioner Dorothy Ann Glenn and the Greenwood Municipal Democratic Executive Committee. Petitioner filed her Notice of Motion, Motion to Dismiss or in the Alternative Motion for Sununary Judgment on May 20, 2013. On May 24,2013, Petitioner filed and served her Answer and Affirmative Defenses. A hearing was held the same day before the Special Election Tribunal. After the hearing, the Special Tribunal entered its Findings and Facts and Conclusions of Law on June 27, 2013, and the Special Judge entered his Order on the same date which was filed and entered on June 28, 2013. The Order ofthe lower court held that Petitioner, the winner of ward 5 council seat in Greenwood, did not live in the ward, was not qualified to hold the seat, set aside her nomination and ordered a Special Primary Run-Off Election between the two losing candidates to take place on the first Tuesday after two weeks after the entry of the Order. Also, the lower court held that "FURTHER, the matter of expense, cost, etc. is hereby reserved, the assessment of which to be determined at a later date. Petitioner timely filed her Petition for Interlocutory Appeal, Request for Expedited Consideration and For Emergency Reliefto Stay Execution of the Court's Order on June 30, 2013. 1
STATEMENT OF THE FACTS The qualification deadline for candidates to run for municipal offices in Greenwood, Mississippi was March 8, 2013. Three candidates, Appellant Glenn, Appellee Powell, and Norman Smith, qualified for the position of City Couucil, Ward 5 and were on the ballot on May 7,2013. The Greenwood Municipal Democratic Executive Committee (GMDEC) certified Appellant Glenn as the winner based upon the election results for Ward 5 as follows: Total Dorothy Ann Glenn Andrew Powell Norman Smith Polling 396 214 160 21 Absentee 85 53 30 2 Affidavit! Provisional ~ 25 J5L _1_ 526 292 (55.51%) 209 (39.73%) 24 (4.56%) After Appellant Glenn was certified as the wiuuer of Ward 5, appellee on or about May 10, 2013, filed a Petition or challenge to the residency qualification of Glenn with the GMDEC. On May 16,2013, Appellee Powell filed his Petition for Judicial Review pursuant to Miss. Code Ann. Section 23-15-927, challenging the qualification of Appellant as the democratic nominee forwards. Appellant Glenn filed her motion to dismiss or in the alternative for suunnary judgment on December 18,2013. In her motion, Appellant alleged that the Court lacked subject matter jurisdiction, Rule 12(b)(1 ),jurisdiction over the person 12(b )(2) and the complaint failed to state a claim upon which relief can be granted, 12(b)(6). Appellant contended that based upon the qualification deadline of March 8, 2013, Appellee had ten (10) days uuder Section 23-15-961(1) or uutil March 18,2013, to contest her qualification as a candidate for nomination in the democratic party primary, and Appellee failed to meet this deadline. It wasn't until after the Appellant was declared the official winner of the 2
election, sum two (2) months after the qualification deadline, that the Appellee alleged that Appellant did not meet the residency requirement. Appellant contended that any challenge to the qualification as a party candidate must be brought pursuant to Section 23-15-961 and not Section 23-15-921; that Section 23-15-961 provides the exclusive procedures for contesting qualifications of candidates for primary elections, citing this Court's decision in Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). On May 24, 2013, the lower court entered its bench Order denying the motion, stating no reason and making no specific fmdings. On June 27, 2013, the court entered its findings offact and conclusions oflaw where the court adopted verbatim appellee's proposed findings offact and conclusions of law, and held as follows: Ms. Glenn also cites Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). Gourlay filed a petition to the Democratic Executive committee contesting the qualification of a rival candidate for the office of Bolivar County Supervisor. The petition was denied by the Committee, and Gourlay filed a Petition with the Circuit Court pursuant to Miss. Code Ann. 23-15-963. The respondent, Williams, moved to dismiss stating that any election contesting the qualifications of a party nominee must be brought pursuant to Miss. Code Ann. 23-15-961. The trial court agreed and dismissed the Petition and the Supreme Court affirmed. The highlight of that case is that Gourlay relied upon the wrong statute. When reviewing the case law and statutes in context, it becomes clear that Miss. Code Ann. 23-15-961(7) (which provides that "The procedure set forth above ( 961 (1)-(6)) shall be the sole and only marmer in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election,") applies to challenges prior to nomination or election at a party primary. 921, by its language, applies to challenges after a primary. It specifically says that a person desiring to contest the election of another person returned as the nominee ofthe party must first file a petition with the party executive committee. Clearly, this is a post primary statutory procedure, not a post general election procedure. Gourlay did not avail himself of this procedure and the court did not consider sections 921 and 927, so the ruling in Gourlay is inapplicable here. The Supreme Court focused its opinion on an analysis of Miss. Code Ann. 23-15-961 versus Miss. Code Ann. 23-15-963 and never mentioned 921 or 927. 3
The lower court found that Appellant Gleun was not domiciled in Ward 5 of Greenwood, Mississippi, when she filed her qualification to run for office and she was not qualified as a party nominee and is not qualified to hold the seat of City Council Member for Ward 5 of Greenwood, Mississippi, and her nomination in the Primary Election is set aside and held for naught. Further, the lower court held that the two lawful candidates who received the most votes were Andrew Powell and Norman Smith. Thus, the court ordered a special primary run-off election to take place on the first Tuesday after two weeks after entry of the court's order. Finally, the lower court held in its Order that the matter of expense, cost, etc., was reserved and the assessment of which was to be determined at a later date. 4
STANDARD OF REVIEW This Court should apply two standards of review in this case: de novo and abuse of discretion. Issues one and two raised above require this Court to interpret the law. In reviewing questions oflaw, the Supreme Court proceeds de novo. Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). 5
SUMMARY OF THE ARGUMENT The Appellant, Dorothy Ann Glenn, in the present case at bar, puts forward a simple but coherent argument. The Appellee, Andrew Powell, filed an election contest pursuant to Section 23-15-921 of the Mississippi Code challenging the Appellant's qualifications after she had been certified the winner of the election of Ward 5 in the City of Greenwood. The election contest was filed before the Greenwood Municipal Democratic Executive Committee. After having failed to overturn the elected will of the people of Greenwood, the Appellee filed a Petition for Judicial Review pursuant to Section 23-15-927 ofthe Mississippi Code Annotated. It is the Appellant's contention that the Appellee failed to file his initial election contest in accordance with established procedures and in accordance with the appropriate statute. Appellee was bound by established law and procedure which dictated that the Appellee should have filed his Petition to contest the qualifications of the Appellant pursuant to Section 23-15-961(1) of the Mississippi Code Annotated. Appellee Powell was bound to file his contest within the ten (10) day period as prescribed by Section 23-15-961(1), and his failure to do so resulted in his election contest petition being untimely, and thus not actionable. It is Appellant's position that Section 23-15- 961 is clear and it is as it reads. "Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. The petition shall be filed with the executive committee with whom the candidate in question qualified." The qualifying deadline to become a candidate in the city of Greenwood's Primary Election was March 8, 2013. Therefore, the Appellee had ten (10) days, or until March 18,2013 to contest the Appellant's qualifications as a candidate. 6
By requesting judicial review pursuant to Section 23-15-927 of the Mississippi Code Annotated, Appellee Powell sought to circumvent not only Section 23-15-961, but legal precedent as clearly established in the controlling case of Gourlay v. Williams, 874 So. 2d 987 (2004). 7
ARGUMENT I THE LOWER COURT DID NOT HAVE JURISDICTION TO DECIDE A CONTEST OF QUALIFICATIONS OF CANDIDATES FOR PRIMARY ELECTION UNDER MISS. CODE ANN. SECTION 23-15-927 AS OPPOSED TO SECTION 23-15-961. The lower court lacked jurisdiction to decide a contest of qualifications of a candidate for Primary Election under Miss. Code Ann. 23-15-927 as opposed to 23-15-961. On May 10, 2013, Appellee Powell filed his Petition to certify the true results of the Democratic Primary Election for City Council, Ward 5 pursuant to MCA 23-15-921 with GMDEC, and the only issue raised in the Petition concerned whether or not Appellant Glenn was a resident of Ward 5. In his petition seeking judicial review pursuant to 23-15-921, Appellee made no allegation attacking the integrity of the voting process nor did he allege that the will of the people did not prevail. instead, the only thing challenged by the appellee was the residency requirement that Glenn was not domiciled in Ward 5. This is clearly a challenge to the qualification as a party candidate. Hence, any challenge to the qualification as a party candidate must be brought to 23-15-96l and not 23-15-921. Section 23-15-961 provides the exclusive procedures for contesting qualifications of candidates for primary elections. Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). Because the contest in the case at bar concerns the qualifications of Glenn as a party nominee, it should have been filed pursuant to 23-15-961. Id. Section 23-15-961 provides in pertinent part: (l) Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified. Part 7 of that same section further provides: 8
(7) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election. March 8, 2013 was the qualification deadline to run for municipal office in the City of Greenwood, Mississippi. Thus, Powell had ten (10) days from March 8, 2013 or until March 18, 2013 to contest the qualification of Glenn as a candidate for Councilman Seat Ward 5 in the Democratic Primary. March 8, 2013 until March 18, 2013 was Powell's time to contest Glenn's domicile in Ward 5. He failed to do so within the specified statutory timeframe. Only after Powellost the primary election, did he file a challenge to Glenn's qualification with GMDEC on May 10,2013. This case is governed by the precedent set by this Supreme Court in Gourlay v. Williams, 874 So.2d 987 (Miss. 2004). Gourlay and Williams qualified for the Democratic Party Nomination for Bolivar County Supervisor (District 1). After Gourlay lost the election, he filed a petition contesting the qualification of Williams with the Bolivar County Election Commission pursuant to 23-15-963. Gourlay is analogous to the case at bar because Gourlay contended for the first time that Williams was not a resident of Bolivar County and that he was unqualified, only after Williams was declared the winner of the election. Id The Election Commission denied the petition. Id Gourlay filed his Petition for Judicial Review before the Circuit Court of Bolivar County. Id. During the hearing, Williams moved to dismiss on the ground that any contest brought prior to the General Election questioning his qualification as a party nominee should have been brought pursuant to Miss. Code Ann. 23-15-961 (Rev. 2011). /d The trial court dismissed the petition because Gourlay did not satisfy the deadline set forth in 23-15- 961 (1). Id. On appeal, this Court affirmed the trial court's judgment. Id This Court held that 23-15-961 is the sole means for contesting the qualifications of a candidate seeking office as a 9
party nominee. Id Further, this Court held "because the contest in the instant case concerns the qualifications of Williams as a party nominee, it should have been brought pursuant to 23-15- 961." Id This Court further held that the trial court was correct in holding that this suit was time-barred.ld at 989. The lower court refused to follow this Court's decision in Gourlay v. Williams. Ironically, the Honorable Judge Henry L. Lackey, the Special Judge in this matter, was also appointed by this Court and presided and entered the lower court's decision in Gourlay v. Williams. The lower court's ruling is in direct conflict with 23-15-961 and Gourlay v. Williams, supra., and has in essence declared 23-15-961 unconstitutional and has reversed the this Court's decision in Gourlay v. Williams. ARGUMENTll THE LOWER COURT ERRED IN ORDERING A SPECIAL PRIMARY RUN OFF ELECTION WITHIN TWO WEEKS BETWEEN THE TWO LOSING CANDIDATES. The lower court ordered a "Special Run-Off Election" to take place within two weeks of the Court's order between the two losing candidates after setting Appellant's nomination in the primary election aside and holding it for naught. This decision is in direct violation of 23-15- 937 which provides in pertinent parts as follows: When no final decision has been made by the time the official ballots are required to be printed, the name of the nominee declared by the party executive committee shall be printed on the official ballots as the party nominee, but be printed on the official ballots as the party nominee, but the contest or complaint shall not be thereby dismissed but the cause shall nevertheless proceed to final judgment and if the judgment is in favor of the contestant, the election of the contestee shall thereby be vacated and the Governor, or the Lieutenant Governor, in case the Governor is a party to the contest, shall call a special election for the office or offices involved. If the contestee has already entered upon the term he shall vacate the office upon the qualification of the person elected at the special election, and may be removed by quo warranto ifhe fails to do so. 10
According to 23-15-937, there is only one Special Election to be held after the general election has already occurred. Under this authority, if a special election is required, then the governor is required to call a special election. The Special Tribunal erred in ordering a Special Primary Run-Off Election to be held when it is statutorily mandated under 23-15-937 that the governor calls such elections. Further, under Mississippi law, the special election is not limited to the two losing candidates. CONCLUSION The lower court's decision to disqualify Appellant Glenn should be reversed and it's decision to order a Special Election between the two-losing candidates should be set aside. Respectfully Submitted, ell~' S-±~\~00 ERIC C. HA WKlNS Attorney for Appellant 11
CERTIFICATE OF SERVICE I hereby certify that I, Eric C. Hawkins, Attorney for Appellant, have, upon request by the Supreme Court of Mississippi, by United States mail, postage prepaid, forwarded a true and accurate copy of the above and foregoing document to: BELL & ASSOCIATES James D. Bell, MSB ~ P. Caleb Koonce, MS~ 318 South State Street Jackson, Mississippi 39201 Telephone: 601-981-9221 Facsimile: 601-981-9958 Email: ibell!ivjudgebell.com. Respectfully submitted this the 2..3 day of January, 2014. DOROTHY ANN GLENN 'E: '(; n\ \' \... L... '" Lr- ) 0..A..; \ \/",-.0 BY :4 ERIC. C. HAWKINS ATTORNEY FOR APPELLANT 12
CERTIFICATE OF SERVICE I hereby certify that I, Eric C. Hawkins, Attorney for Appellant, have, upon request by the Supreme Court of Mississippi, by United States mail,.postage prepaid, forwarded a true and accurate copy of the above and foregoing document to: BELL & ASSOCIATES James D. Bell, MSB - P. Caleb Koonce, 318 South State Street Jackson, Mississippi 39201 Telephone: 601-981-9221 Facsimile: 601-981-9958 Email:ibell@.judgebell.col11 Respectfully submitted this the i..."-; day of January, 2014. DOROTHY ANN GLENN BY (.~.~ I ( t... -"'~-'-..:..- \. \'.1. \ -_ 'j ERIC. C. HAWKINS ATTORNEY FOR APPELLANT TEL: 662-335-2102 12