Upton v. McKenzie, No. 1999-EC-01669-SCT.

• Decision Date: 01 June 2000
• Docket Number: No. 1999-EC-01669-SCT.
• Citation: 761 So.2d 167
• Parties: Kenneth K. UPTON v. Elaine T. McKENZIE.
• Court: Mississippi Supreme Court

761 So.2d 167

Kenneth K. UPTON v. Elaine T. McKENZIE.

No. 1999-EC-01669-SCT.

Supreme Court of Mississippi.

June 1, 2000.

Garland D. Upton, Columbia, Attorney for Appellant.

Samuel W. Keyes, Jr., Tommie S. Cardin, Julie Hussey, Jackson, Attorneys for Appellee.

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Kenneth K. Upton appeals to this Court from a contest of the primary election for the office of supervisor, District Four, Marion County, Mississippi, held August 3, 1999, wherein the Circuit Court of Marion County ruled against him. Elaine T. McKenzie, one of fourteen writein candidates, received 65.3% of the vote, and Upton, whose name was printed on the ballot, received 32.1% of the vote. The Marion County Democratic Executive Committee ("DEC") refused to consider the write-in votes cast for McKenzie. However, the Circuit Court of Marion County found that McKenzie should be certified the winner of the election. Upton appeals from the judgment of the circuit court.

¶ 2. After careful consideration, we hold that the circuit court was correct in certifying McKenzie as the winner of the election contest for Supervisor of District Four of Marion County.

STATEMENT OF FACTS

¶ 3. Billy Ray McKenzie, husband of Elaine McKenzie, and Kenneth Upton were the only qualifying candidates for the Democratic Party nomination for the office of supervisor of Marion County, Mississippi, District Four. At the time, Billy Ray McKenzie was completing a previous term on the Marion County Board of Supervisors. The deadline for qualification was March 1, 1999, and the election was to be held on August 3, 1999. On May 18, 1999, Billy Ray McKenzie died. At the time of his death, the ballot for the primary had not yet been printed. After his death, Elaine McKenzie (hereinafter "McKenzie") served the unexpired term of her husband and campaigned as a write-in candidate for the office of supervisor.

¶ 4. In the primary election, McKenzie received 1,194 votes from electors who wrote her name on the official ballot and put an "X" opposite thereto. Upton, whose name was already printed on the ballot, received 586 votes. McKenzie received 65.3% of the vote, while Upton received 32.1% of the vote.

¶ 5. The Marion County DEC refused to consider the write-in votes cast for McKenzie and instead certified Upton as the Democratic Party nominee. McKenzie filed a petition for primary election contest before the Marion County DEC on August 4, 1999. Apparently relying on an opinion of the Attorney General which states that Miss.Code Ann. § 23-15-365 (1990) does not allow for the casting of write-in votes where a candidate dies prior to the printing of the ballot, Op. Miss. Att'y Gen.XXXX-XXXX, 1999 WL 529166 (June 3, 1999), the Marion County DEC refused to grant the requested relief. On August 24, 1999, McKenzie filed a Protest and Petition for Judicial Review of Election Contest, or Alternatively, Complaint for the Declaratory Judgment in the Circuit Court of Marion County. The petition was not certified by two practicing attorneys as required by Miss.Code Ann. § 23-15-927 (1990), but was signed by counsel. On September 7, 1999, Upton filed a Motion to Dismiss or Alternatively Motion for Summary Judgment as well as his responsive pleading. The same day, prior to the service of Upton's motion and answer, McKenzie filed an amended petition which was properly certified. McKenzie filed a Motion for Summary Judgment on September 21, 1999.

¶ 6. On August 26, 1999, this Court appointed the Honorable Hollis McGehee, Chancellor for the Fourth Chancery Court District, to preside over the election contest pursuant to Miss.Code Ann. § 23-15-929 (1990). Subsequent to a hearing, the circuit court found that McKenzie should be certified the winner of the primary election. Unopposed, McKenzie subsequently won the general election held on November 2, 1999. From the judgment of the circuit court, Upton appeals, raising the following issues:

I. THE TRIAL COURT ERRED IN DENYING UPTON'S MOTION TO DISMISS.

II. THE ATTORNEY CERTIFYING THE PETITION WAS DISQUALIFIED.

III. MISS. CODE ANN. § 23-15-365 DOES NOT ALLOW FOR WRITE-IN CANDIDATES UNDER THE CIRCUMSTANCES EXISTING AT THE TIME OF THE ELECTION.

STANDARD OF REVIEW

¶ 7. In this case, there is no dispute of fact. In reviewing errors of law, this Court proceeds de novo. Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996) (citing Bilbo v. Thigpen, 647 So.2d 678, 688 (Miss.1994); Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss. 1990)).

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED IN DENYING UPTON'S MOTION TO DISMISS.

¶ 8. Upton filed a Motion to Dismiss or, Alternatively, Motion for Summary Judgment with the circuit court, arguing, inter alia, that the circuit court was without jurisdiction to hear the case. Upton contends that, according to Miss.Code Ann. § 23-15-927 (1990), a county executive committee has authority to investigate only irregularities in the ballot box or fraud in the election process. Upton argues that these irregularities are limited to such things as "discrepancies in vote counting, the number of voters signing the registration book as compared to the number of ballots in the ballot box, illegal votes, and the security of the ballot box." Upton asserts that because McKenzie does not allege any of the irregularities defined in § 23-15-927, the circuit court was without jurisdiction to hear the case.

¶ 9. This assignment of error is without merit. Section 23-15-927 does not define any irregularities which may be reviewed by a county executive committee, but rather provides for the filing of a petition in the circuit court where a county executive committee delays or denies relief to the petitioner. McKenzie correctly notes that nothing in Miss.Code Ann. § 23-15-921 (1990), the operative statute, limits the committee's inquiry regarding a contest of a primary election to allegations of fraud. Section 23-15-921 provides:

Except as provided by Section 23-15-961, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office, or as the nominee of a legislative district composed of one (1) county or less, may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three (3) members of said committee, notice of which contest shall be served five (5) days before said meeting, and after notifying all parties concerned proceed to investigate the grounds upon which the election is contested and, by majority vote of the members present, declare the true results of such primary.

(emphasis added). The wording of this statute simply does not limit an executive committee's review of an election to instances where the contest is based on grounds of fraud and certain irregularities. Upton's contention that the investigatory powers of county executive committees are limited to such things as "discrepancies in vote counting, the number of voters signing the registration book as compared to the number of ballots in the ballot box, illegal votes, and the security of the ballot box" is clearly without merit. Thus, the circuit court did not err in denying Upton's motion to dismiss.

II. THE ATTORNEY CERTIFYING THE PETITION WAS DISQUALIFIED.

¶ 10. Upton also alleged in his motion to dismiss that the circuit court lacked jurisdiction to hear this matter because McKenzie failed to obtain proper certification for her petition to the circuit court. Miss.Code Ann. § 23-15-927 (1990) provides that an election contestant may seek judicial review of the action of a county executive committee by filing a petition in the circuit court of the county involved. In pertinent part, the statute provides: But such petition for a judicial review shall not be filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted....

Id. The purpose of the certification requirement is "to prevent, or at least to minimize, the bringing before the courts of captious or unsubstantial political contests of primary elections...." Harris v. Stewart, 187 Miss. 489, 506, 193 So. 339, 343 (1940). The affidavits "prevent persons declared party nominees from being harassed with trivial applications for judicial review thereof, and contemplates, as the word `independent' connotes, a certificate by lawyers who are without bias or prejudice." Pittman v. Forbes, 186 Miss. 783, 789, 191 So. 490, 490 (1939).

¶ 11. One of the attorneys certifying McKenzie's petition to the circuit court was Joseph M. Shepard. Shepard served as attorney for the Marion County Board of Supervisors before and after the death of Billy Ray McKenzie. Again, Elaine McKenzie served the unexpired term of Billy Ray McKenzie. Upton argues that Shepard's serving as attorney to a board on which Elaine McKenzie was a member and to which she sought election created a conflict of interest, resulting in the disqualification of Shepard as a certifying attorney. Because the certification requirement is jurisdictional, Upton contends that the circuit court lacked jurisdiction to hear the case. See Pearson v. Jordan, 186 Miss. 789, 792, 192 So. 39, 40 (1939) (noting that where the certification requirement is not met, the lower court is without jurisdiction to hear the case, and this Court is...