Cook v. Brown, 2003-EC-02515-SCT.

Decision Date03 February 2005
Docket NumberNo. 2003-EC-02515-SCT.,2003-EC-02515-SCT.
PartiesArchie COOK v. Joe M. BROWN.
CourtMississippi Supreme Court

Darnell Felton, attorney for appellant.

Thomas Alan Womble, Batesville, attorney for appellee.


EASLEY, Justice, for the Court.


¶ 1. This case involves an election contest for between the only two candidates for nomination in the Democratic Party primary election for the office of District Two Justice Court Judge for Quitman County, Mississippi. Archie Cook (Cook) and Joe M. Brown (Brown) were the two Democratic candidates in this race. A primary election was held on August 5, 2003. The Quitman County Democratic Party Executive Committee certified Brown as the winner of the primary election by a margin of 47 votes on August 5, 2003.

¶ 2. On August 15, 2003, ten days after the primary election, Cook filed a notice of application for examination. The notice requested an examination of the ballot boxes on August 19, 2003, which was fourteen days after the primary election. Cook appeared to examine the ballot boxes, however, the boxes were not examined because of verbal opinion from the Attorney General's Office and the Secretary of State's Office that pursuant to Miss.Code Ann. § 23-15-911, the 12 day statutory period to view the ballots had expired.

¶ 3. Cook later filed a petition contesting the election with the Quitman County Democratic Executive Committee on August 20, 2003. The Committee met and conducted a hearing on September 4, 2003, affirming its prior decision that Brown was the Democratic nominee for District Two Justice Court Judge. Following this ruling, Cook filed a petition for judicial review with the Circuit Court of Quitman County on October 13, 2003. See Miss Code Ann. § 23-15-927.

¶ 4. On October 17, 2003, this Court appointed Chancellor Jacqueline Estes Mask to serve as special judge to hear the election contest in the Circuit Court of Quitman County. Cook and Brown received copies of the order on October 20, 2003. The next day, Brown filed an answer which asserted in part the affirmative defense in the form of a M.R.C.P. 12(b)(6), motion to dismiss for failure to state a claim. Judge Mask entered an order on October 30, 2003, setting a pretrial hearing for November 3, 2003. Brown presented the motion to dismiss at the November 3 hearing. The trial court entered judgment on November 4, 2003, dismissing the petition and ruling that Brown was the Democratic nominee for District Two Justice Court Judge for Quitman County. Following this ruling, Cook appealed to this Court, and raises this issue:

Whether the trial court erred by ruling that Cook failed to file a petition for judicial review "forthwith" pursuant to Miss.Code Ann. § 23-25-927.


1. Timely request to view ballot boxes.

¶ 5. The Legislature imposed a 12 day statutory limit to view ballots when there is an election contest pursuant to Miss. Code Ann. § 23-15-911(1) (Rev.2001). The statute states, in part:

(1) ... At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days' notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Upon the completion of said examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved.

¶ 6. In Weeks v. Bates, 237 Miss. 778, 780, 115 So.2d 298, 299-300 (1959), this Court strictly construed the statutory language of then — applicable Miss.Code Ann. § 3169 pertaining to a 12 day window to review ballot boxes.1 In Weeks, the losing candidate noticed the winning candidate of the request for examination of the ballots within 12 days of the canvass, but the actual examination date occurred outside the 12 day period. Id. at 779-90, 115 So.2d 298. The ballots were examined 14 days after the committee canvass. Id. at 780, 115 So.2d 298. This Court held:

Section 3169 is unambiguous. It states that a candidate has a right of examination of the ballot boxes `at any time within twelve days' after the county executive committee's canvass. Appellant made his examination 14 days after the canvass, and over appellee's objection. We are not authorized to alter this statutory limitation on the right to examine ballot boxes in a primary election. The determination of a time limit within which such examinations may be made is a legislative question.

Id. at 299-300 (emphasis added). Likewise, in Noxubee County Democratic Executive Committee v. Russell, 443 So.2d 1191, 1195 (Miss.1983), this Court determined that the 12 day period does not begin to run until the certification. While Russell involved a different statute than Miss.Code Ann. § 23-15-911, the language at issue was the same. In Russell, three days after certification, the losing candidate contested the results, but requested to examine the ballots on a date that was ten days after the certification and thus within the 12 day period.

¶ 7. Here, the primary election and certification was on August 5, 2003. Cook contested the primary election results on August 15, 2003, and requested to view the ballots on August 19, 2003. We find that pursuant to prior case law and the strict interpretation of the statute, Cook had to request and view the ballots on or before August 17, 2003, in order to comply with the requirements of Miss.Code Ann. § 23-15-911. Cook did not view the ballots within the 12 day time frame, and despite any argument concerning the three-day notice requirement to Brown contained in the statute, this Court cannot extend the statutorily mandated requirements. As held in Weeks, setting the time frame for viewing the ballots is a legislative function, and this Court has no authority to modify the 12 day statutory limitation. Weeks, 115 So.2d at 300.

2. The "forthwith" requirement.

¶ 8. This Court in Poindexter v. Southern United Fire Ins. Co., 838 So.2d 964, 966-67 (Miss.2003), set out the well-established standard of review for a motion to dismiss for failure to state a claim upon which relief may be granted, as follows:

A motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6) raises an issue of law. This Court reviews questions of law de novo. When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000) (citations omitted).

See also Page v. Univ. of S. Miss., 878 So.2d 1003, 1004 (Miss.2004)

(We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion); Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730 (Miss.2002); Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such we sit in the same position as the trial court. In Gulledge v. Shaw, 880 So.2d 288, 292 (Miss.2004) this Court held:

Our standard of review in considering motions to dismiss is well-settled. The grant or denial of a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises a question of law that this Court reviews de novo. Black v. City of Tupelo, 853 So.2d 1221, 1223 (Miss.2003). To grant such a motion, "there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Little v. Miss. Dep't of Human Servs., 835 So.2d 9, 11 (Miss.2002). Thus, a Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Id.
A. Statute.

¶ 9. The Mississippi Code permits an election candidate to contest a ruling by the election committee to the circuit court. Miss.Code Ann. § 23-15-927 states in relevant part:

When and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred ... a sworn copy of his said protest or complaint, together with a sworn petition, setting forth with particularity wherein the executive committee has wrongfully failed to act or to fully and promptly investigate or has wrongfully denied the relief prayed by said contest, with a prayer for a judicial review thereof.

(emphasis added).

B. The Circuit Court Ruling.

¶ 10. The trial court held:

The term "forthwith" is not specifically defined in the statute, but has been judicially construed to mandate prompt filing of a petition in the Circuit Court by the aggrieved party. The term has been interpreted to mean as little as four days (e.g., Shannon v. Henson, 499 So.2d 758 (Miss.1986)) or as many as forty-one days (Smith v. Deere, 195 Miss. 502, 16 So.2d 33, 35 (1943)), depending on the circumstances of the case. Pearson v. Parsons, 541 So.2d 447, 450 (Miss.1989).


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