                  IN THE SUPREME COURT OF MISSISSIPPI
                           NO. 93-CC-01036-SCT
DON BULLOCK
v.
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION

DATE OF JUDGMENT:                 09/02/93
TRIAL JUDGE:                      HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:        JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:           GUY M. WALKER II
ATTORNEY FOR APPELLEE:            FRED LOTTERHOS
NATURE OF THE CASE:               CIVIL - STATE BOARDS AND AGENCIES
                                  (OTHER THAN WORKER'S COMPENSATION)
DISPOSITION:                      AFFIRMED - 5/8/97
                          CONSOLIDATED WITH

                              94-CC-00840-SCT
DON BULLOCK
v.
CITY OF LAUREL, MISSISSIPPI
DATE OF JUDGMENT:                 8/11/94
TRIAL JUDGE:                      HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:        JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:           GUY M. WALKER
ATTORNEY FOR APPELLEE:            WILLIAM S. MULLINS
NATURE OF THE CASE:               CIVIL - STATE BOARDS AND AGENCIES
                                  (OTHER THAN WORKER'S COMPENSATION)
DISPOSITION:                      AFFIRMED - 5/8/97
MOTION FOR REHEARING FILED:       5/21/97
MANDATE ISSUED:                   7/24/97




   BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.


   ROBERTS, JUSTICE, FOR THE COURT:
¶1. Don Bullock was an administrative employee with the City of Laurel when he qualified to run for
the office of mayor of the City against the incumbent, Henry Bucklew. Bucklew gave Bullock written
notice that his employment with the City was being terminated as of February 18, 1993, due to his
having qualified as a candidate for municipal elective office at a time when he was a civil service
employee of the City. Bucklew cited Miss. Code Ann. § 21-31-27 and § 21-31-75 (1972) as
authority for the termination. Bullock's termination was affirmed by both the Civil Service
Commission and the Jones County Circuit Court.

¶2. Bullock applied for unemployment compensation and was denied benefits, based on a finding that
Bullock's termination was due to misconduct. The denial of unemployment benefits was upheld by
Mississippi Employment Security Commission's appeals referees, the Commission's Board of Review,
and the Jones County Circuit Court.

¶3. Bullock now appeals both the termination decision and the denial of unemployment benefits to
this Court.

                                            DISCUSSION


     I.(1) WHETHER SECTIONS 21-31-27 AND 21-31-75 OF THE MISSISSIPPI CODE
     ANNOTATED PROHIBITS AN ADMINISTRATIVE EMPLOYEE UNDER CIVIL
     SERVICE FROM QUALIFYING TO RUN AS MAYOR OF THE MUNICIPALITY.

     II. WHETHER SECTION 21-31-75 IS THE ONLY STATUTE APPLICABLE
     GOVERNING CIVIL SERVICE EMPLOYEES WHO ARE ADMINISTRATIVE OR
     SALARIED AS DISTINGUISHED FROM POLICEMEN AND FIREMEN AND
     WHETHER THE ONLY PROHIBITION IS AGAINST AN ADMINISTRATIVE
     EMPLOYEE ACTING AS A REPRESENTATIVE OF ANY CANDIDATE.

¶4. In his letter to Bullock terminating his employment with the City, Mayor Bucklew wrote in part:

     This action is taken due to the fact that while employed as a Civil Service employee of the City
     of Laurel, you qualified as a candidate for office in the 1993 Municipal Election, and in
     accordance with Sections 21-31-27 and 21-31-75, Mississippi Code of 1972.

¶5. Miss. Code Ann. § 21-31-27 and § 21-31-75 read in pertinent part:

     § 21-31-27: If any person holding any office, place, position or employment subject to civil
     service, actively participates in political activity in any primary or election in a municipality
     where he is employed, it shall be deemed cause for removal.

     § 21-31-75: No person holding any office, place, position or employment subject to civil
     service, is under any obligation to contribute to any political fund or to render any political
     service to any person or party whatsoever, and no person shall be removed, reduced in grade or
     salary, or otherwise prejudiced for refusing so to do. No public officer, whether elected or
     appointed, shall discharge, promote, demote or in any manner change the official rank,
     employment or compensation of any person under civil service, or promise or threaten so to do,
     for giving or withholding, or neglecting to make any contribution of money, or service, or any
     other valuable thing, for any political purpose. No such employee shall engage in any political
     campaign as a representative of any candidate or shall engage in pernicious activities, and
     any person so engaging in such activities shall be subject to dismissal or demotion.

(emphasis added).

¶6. Bullock's argument is two-fold. First, he maintains that only § 21-31-75 and not § 21-31-27
applies to him as an administrative employee. Second, he contends that § 21-31-75 only prohibits a
civil service employee from representing a candidate in a political campaign, not from actually being a
candidate himself.

¶7. The Mississippi legislature has established two separate civil service systems in the state. The
first, established by Miss. Code Ann. §§ 21-31-1 through 21-31-27, applies only to "full paid
employees of the fire and police departments . . . ." See City of Laurel v. Samuels, 469 So. 2d 530,
531 (Miss. 1985). The second civil service system was created by Miss. Code Ann. §§ 21-31-51
through 21-31-75, and is applicable to administrative and other municipal employees on a monthly
salary. Id. at 531. Bullock was a civil service administrative employee of the City of Laurel and
therefore subject to the civil service laws found at §§ 21-31-51 through 21-31-75. Miss. Code Ann. §
21-31-27 is not, then, applicable to him as an administrative employee.

¶8. The question remains whether Miss. Code Ann. § 21-31-75 prohibited Bullock from qualifying as
a candidate in a municipal election while employed as an administrative employee subject to the civil
service statutes. Bullock contends that it did not, and had the legislature intended that civil servants
not run for office, it would have added the phrase "or be a candidate" to the statute. Bullock argues
that a reading of § 21-31-75 shows that the intent of the legislature was to protect a civil servant
from political pressure from his superiors and others that might otherwise arise due to his
employment in the municipality. Bullock suggests that the purpose of the last sentence of the section,
which prevents the employee from engaging in a political campaign "as a representative of any
candidate", is to protect the civil service employee so it would not be claimed that he voluntarily
worked for a candidate in a political election.

¶9. The City of Laurel and the Mississippi Employment Security Commission both argue that § 21-
31-75 prohibited Bullock from becoming a political candidate. They maintain that Bullock's argument
that in qualifying as a candidate for mayor he did not "engage in any political campaign as a
representative of any candidate" is ridiculous. They urge this Court to hold that it was the
legislature's intent when they used the phrase "representative of any candidate" that it necessarily
encompass being a candidate since one would then be representing oneself.

¶10. Long standing precedent requires that where a statute is plain and unambiguous there is no room
for construction. It is only when a statute is unclear or ambiguous that a court should look beyond
that language of the statute in determining the legislature's intent. Kerr-McGee Chem. Corp. v.
Buelow, 670 So. 2d 12, 17 (Miss. 1996); Allred v. Webb, 641 So. 2d 1218, 1222 (Miss. 1994);
Clark v. State ex rel. Mississippi State Medical Ass'n, 381 So. 2d 1046 (Miss. 1980). Looking once
again to the portion of § 21-31-75 at conflict here, when read together with the rest of the statue, the
meaning seems clear and unambiguous:
     No person holding any office, place, position or employment subject to civil service, is under
     any obligation to contribute to any political fund or to render any political service to any person
     or party whatsoever, and no person shall be removed, reduced in grade or salary, or otherwise
     prejudiced for refusing so to do. No public officer, whether elected or appointed, shall
     discharge, promote, demote or in any manner change the official rank, employment or
     compensation of any person under civil service, or promise or threaten so to do, for giving or
     withholding, or neglecting to make any contribution of money, or service, or any other valuable
     thing, for any political purpose. No such employee shall engage in any political campaign as a
     representative of any candidate or shall engage in pernicious activities, and any person so
     engaging in such activities shall be subject to dismissal or demotion.

(emphasis added).

¶11. This Court holds that the legislature's intent throughout the statute is to protect civil service
employees, who by the very nature of their employment are subordinates to elected officials, from
being pressured to contribute in any way to any political campaign. This is clearly the intent of the
first two sentences of the statute. The phrase "no such employee shall engage in any political
campaign as a representative of any candidate" is merely an extension of this intent. Disallowing
persons coming under the civil service statutes from representing a candidate in a political campaign,
even on a voluntary basis, lessens the possibility of hidden pressures to do so, since there can be no
defense that the person voluntarily represented a candidate.

¶12. The language of the statute does not explicitly prohibit a person from being a candidate him or
herself. The City of Laurel and the Mississippi Employment Security Commission argue that such a
prohibition is implied. This Court agrees that a reasonable interpretation of legislative intent would
prohibit an employee from running for an office, as well as representing a political candidate. If the
purpose of the statute is to prevent employees from being pressured politically against the employee's
wishes, this Court extends the legislature's use of the phrase "represent a candidate" to necessarily
preclude a civil servant from becoming a candidate as he would then be representing himself. There is
no need for an explicit prohibition where a reasonable interpretation can be made from the plain
reading of the statute.

¶13. Had Miss. Code Ann. § 21-31-27 been applicable to Bullock as an administrative employee,
there is the possibility that his qualifying as a candidate in a municipal election would have been cause
for removal. But, Miss. Code Ann. § 21-31-27 did not apply to Bullock because he was an
administrative employee not employed by the fire or police department. In this case, Miss. Code Ann.
§ 21-31-75 was the applicable statute and authorized Mayor Bucklew to fire Bullock because he
qualified to run for mayor. Therefore, he was properly dismissed, and the denial of unemployment
benefits was justified. This cause is affirmed on this issue in favor of both the City and the
Commission and against Bullock.

     III. WHETHER SECTION 21-31-75 IS UNCONSTITUTIONAL IN THAT IT
     VIOLATES ARTICLE 3 OF SECTION 4 OF THE MISSISSIPPI CONSTITUTION,
     THE FIRST AMENDMENT, THE FIFTH AMENDMENT, THE FOURTEENTH
     AMENDMENT, SECTION 2, AND THE FIFTEENTH AMENDMENT TO THE
     UNITED STATES CONSTITUTION, FOR THE REASON THAT THE SAME IS TOO
     EXCESSIVE AN EXERCISE OF POWER, NOT REASONABLY RELATED TO A
     GOVERNMENTAL PURPOSE AND GOES BEYOND THE NECESSITY OF THE
     CASE SO AS TO BE AN ARBITRARY EXERCISE OF GOVERNMENT POWER.

¶14. Next, Bullock argues that Miss. Code Ann. § 21-31-75 is unconstitutional as being over broad
since it is not limited to representation of a municipal candidate, but instead encompasses candidates
in any election, city, county, state, or federal. The hypothetical used by Bullock in his argument that §
21-31-75 would prevent a secretary, who is an administrative employee within a municipality, from
representing a county candidate, a state candidate, a federal candidate, or the President of the United
States. Bullock argues that when taken in this context, the statute is too excessive an exercise of
power and should be declared unconstitutional.

¶15. This Court holds that Bullock does not have standing to raise this issue since he does not argue
that it is unconstitutional when applied to his situation, only that it might be unconstitutional in other
circumstances not involving a municipal election. "[A] person to whom a statute may constitutionally
be applied will not be heard to challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in situations not before the Court." Broadrick v. Oklahoma, 413 U.S.
601, 610 (1973). See also, Mississippi Bd. of Nursing v. Belk, 481 So. 2d 826, 831 (Miss. 1985);
State of New Mexico v. Manzagol, 87 N.M. 230, 233, 531 P.2d 1203, 1206 (1975). Therefore, this
issue is not properly before the Court and should not be addressed.

     IV. WHETHER SECTIONS 21-31-27 AND 21-31-75 ARE UNENFORCEABLE SINCE
     THEY HAVE NOT BEEN APPROVED BY THE JUSTICE DEPARTMENT AS
     REQUIRED BY SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, 42 USC 1973c,

¶16. Bullock argues that Miss. Code Ann. § 21-31-27 and § 21-31-75 are unenforceable since they
were not precleared by the Justice Department pursuant to section 5 of the Voting Rights Act of
1965, as amended, 42 USC § 1973c. Section 5 of the Voting Rights Act requires preclearance before
the enforcement of any rules effecting the voting rights of citizens. According to Bullock, § 21-31-27
and § 21-31-75 place an obstacle to candidates qualifying for elective office, and there is the potential
for discrimination, placing a burden upon entry into an elective campaign and limiting the choices
available to voters.

¶17. The preclearance requirement of the Voting Rights Act is not applicable to § 21-31-27 and § 21-
31-75 of Mississippi's Civil Service Act. The preclearance provisions of 42 USC 1973c are not to be
applied retroactively. Mexican Am. Bar Assoc. of Texas v. State of Texas, 755 F.Supp. 735, 737
(W.D. Tex. 1990), Hereford Indep. Sch. Dist. v. Bell, 454 F.Supp. 143 (D.C. Tex. 1978), Briscoe
v. Bell, 432 U.S. 404, 413 n. 12 (1977). As the provisions of state law at issue here were enacted in
1944 and the Voting Rights Act was not enacted until 1965, it has no application in this instance.
This issue is therefore without merit.

                                            CONCLUSION

¶18. Bullock's employment with the City of Laurel was properly terminated when he qualified as a
candidate for mayor against incumbent Bucklew. Miss. Code Ann. § 21-31-27 did not apply to him;
however, Miss. Code Ann. § 21-31-75 did apply. This Court, interpreting that statute, holds that
Bullock was prohibited from representing a political candidate, as well as being a political candidate
himself. For these reasons, this Court affirms the decision of the trial court below.

¶19. JUDGMENT IS AFFIRMED.

PRATHER, P.J., PITTMAN, SMITH AND MILLS, JJ., CONCUR. LEE, C.J., CONCURS IN
RESULT ONLY. BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY SULLIVAN, P.J., AND McRAE, J. McRAE, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND BANKS, J.

     BANKS, JUSTICE, DISSENTING:

¶20. I must dissent from the majority opinion because I disagree with its interpretation of the
pertinent statute, as well as its conclusions. In sum, I do not agree that the statute should be
interpreted to prohibit Bullock from being a candidate and, even if is so interpreted, I do not believe
that his discharge was "for good cause" within the means of our employment security law.

¶21. While I agree with the majority that Bullock was subject to the civil service provisions codified
at Miss. Code Ann. §§ 21-31-51, -75, I cannot concur in its interpretation that those laws prohibited
Bullock from qualifying as a candidate in the mayoral election. The majority notes the principle that a
plain and unambiguous statute ought not to be further constructed by this Court. It further "holds"
that the legislative intent behind the prohibition of civil servants' engagement in political campaign
activity as a representative of a candidate is to protect civil servants from being pressured into
contributing to a particular official's campaign. In my view, both premises militate against the
majority's conclusion that Bullock was prohibited under this statute from himself running for office.

¶22. First, the plain and unambiguous language states that civil servants such as Bullock may not
"engage in any political campaign as a representative of any candidate." This Section says nothing
about engaging in any political campaign as a candidate. To state what is obvious to my mind, one is
not a "representative" of oneself.(2) Therefore, the plain and unambiguous language in the statute did
not prohibit Bullock's activity. The majority has not offered any justification for its expansive
interpretation of an admittedly plain and unambiguous statute.

¶23. Second, the legislative intent that has been identified by the majority opinion provides further
support for a literal reading of the statute. If the prohibition is intended to remove all external
pressures on civil servants to provide political support to their employers, then there was no reason
for the legislature to include within the statute's ambit any prohibition on one's qualification of himself
for election to political office. A civil servant who wishes to run for political office would not be
doing so as a result of the kind of political pressure from his employer that prompted this legislation.
Thus, the legislative intent of the statute, in addition to its plain language, seems to me to permit
Bullock to qualify himself to run for office.

¶24. While, as I have noted, the statute seems to me to plainly on its face to allow Bullock's activity, I
wish to further note that it is especially important for this Court to refrain from any expansive
construction of statutes that purport to limit citizens' ability to assert their constitutional rights, such
as Bullock's freedom to engage in political speech and activity. Cf. Buckley v. Valeo, 424 U.S. 1, 45,
96 S.Ct. 612, 647, 46 L.Ed.2d 659 (1976) (limitations of political expressions are subject to most
exacting scrutiny); Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed 1093 (1940)
(freedom of speech is a fundamental right and liberty).

¶25. In any event, even if I could concur with the majority's conclusion that the statute at issue here
prohibited Bullock from running for mayor, I could not further conclude that his doing so was
grounds for denial of unemployment benefits. As I have noted above and the majority concedes, the
plain language of this statute does not in any way indicate that Bullock's behavior was prohibited and
therefore grounds for his dismissal. Needless to say, nor has this Court previously construed the
statute as it does today. Since he had no way of knowing that his conduct was grounds for discharge,
I would not now bar him from obtaining unemployment compensation on the grounds that he was
discharged for "cause." Since the statute was, at best, extremely ambiguous, Bullock's conduct in
qualifying for the mayoral election cannot fairly be considered a willful and wanton disregard of his
employer's interest, nor a carelessness or negligence of such degree as to show an intentional or
substantial disregard of his duties as to be misconduct as would bar his right to unemployment
compensation. Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982) (enunciating standard of
misconduct that will preclude an award of benefits).(3)

¶26. Finally, I would like to address the majority's conclusion that Bullock does not have standing to
raise an overbreadth challenge to this statute's restraints on people's First Amendment rights. Without
question, a litigant does not ordinarily have standing to challenge the constitutionality of the breadth
of a statute when its application to his conduct is nevertheless constitutional. This requirement that
litigants themselves be "injured" by a statute's defects, however, has been historically relaxed in the
context of overbreadth challenges to statutes that restrict First Amendment freedoms. Broadrick v.
Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 37 L.Ed. 2d 830 (1973). It has long been
recognized that litigants may raise overbreadth challenges in the area of the First Amendment even
though their own conduct may have been constitutionally restrained where the statute in question
reaches substantially beyond regulable speech. The rationale of allowing such facial challenges
inheres in the uniquely oppressive nature of overly broad restraints on speech, the freedom of which
is at the core of our fundamental rights. Dombrowski v. Pfister, 380 U.S. 479, 486-7, 85 S.Ct. 1116,
14 L.Ed. 2d 22 (1965) (the First Amendment freedoms occupy an especially revered and protected
place in our scheme of fundamental rights). An overly broad statute that restrains citizens' freedom of
speech will work a substantial chilling effect on constitutionally protected speech, such that there may
never be a litigant who has traditional standing inasmuch as he has engaged in the unconstitutionally
prohibited expression. Thus, the rule which relaxes standing requirements serves to combat this
chilling effect on constitutionally valuable expression. See generally, Richard H. Fallon, Jr., "Making
Sense of Overbreadth," 100 Yale L.J. 853 (1991); Note, "The First Amendment Overbreadth
Doctrine," 83 Harvard L.Rev. 844 (1970).

¶27. That said, I would hold that Bullock does have standing to raise an overbreadth challenge to this
statute. I would nevertheless conclude that the statute, as written, does not work any unconstitutional
restraint on municipal employees' freedom of political expression. Broadrick v. Oklahoma, 413 U.S.
601, 617, 93 S.Ct. 2908, 37 L.Ed. 2d 830 (1973) (rejecting overbreadth challenge to state statute
which prohibited state employees from participating in any political campaign or organization as a
representative or a candidate).

¶28. To reiterate, I feel compelled to dissent from the majority opinion because I cannot agree with
its interpretation of the statute to prohibit Bullock from running for office, and I cannot agree that
Bullock was rightfully denied unemployment benefits.

SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.

     McRAE, JUSTICE, DISSENTING:




¶29. I agree with the majority's conclusion that, as a civil service administrative employee, Don
Bullock was subject only to the civil service laws found at Miss. Code Ann. §§ 21-31-51 through 21-
31-75. However, I must part with the majority's reading of § 21-31-75, because it does not preclude
a civil service employee from becoming a political candidate.

¶30. Nowhere does § 21-31-75 require that a civil service employee cannot run for an elected office.
The statute, plainly and unambiguously, says that no employee can engage in a political campaign as
a representative of any candidate. The majority even declares that the language does not explicitly
prohibit a person from being a candidate. However, the majority's interpretation of the statute
stretches the plain meaning of its terms to new lengths.

¶31. The purpose of the statute is, as the majority holds, "to protect civil service employees. . .from
being pressured to contribute in any way to any political campaign." If a civil servant decides to run
for office, how could that employee, who represents himself, be pressured politically against his
wishes?

¶32. Consider the scenario of a sheriff or mayor who decides not to run for reelection. If the
majority's argument is accepted, then any deputy or city employee who sought the sheriff's position
would have to resign from his or her job, just to run for the office. The deputies or city employees,
who are paid a monthly salary, would have to abandon a job to spend four or five months to seek
another one that they are not guaranteed of receiving. Surely, this was not the outcome that the
legislature intended when it enacted § 21-31-75. Accordingly, I dissent.

SULLIVAN, P.J., AND BANKS, J., JOIN THIS OPINION.




1. Issues I and II are essentially the same issues reworded. Bullock argues them together in his brief,
and so, they will be discussed together here.

2. Webster's New International Dictionary, 2d ed.: representative: "One who or that which
represents; specif.: a A person or thing that represents, or stands for, a number or class of persons or
things, or that in some way corresponds to, stands for, replaces, or is equivalent to, another person
or thing; a typical embodiment, type. b One who represents others or another in a special capacity;
an agent, deputy, or substitute . . . . " (emphasis added).

3. Moreover, to the extent that Bullock's grounds for discharge arose in his assertion of a
constitutional right, this Court has held that such behavior will not give rise to "misconduct"
sufficient to preclude unemployment benefits even though he may have been lawfully discharged. See
MESC v. McGlothin, 556 So. 2d 324 (Miss. 1990) (State may not deny unemployment benefits to
an individual who was discharged for declining to abandon her observation of sincerely held religious
beliefs as evidenced in her attire, even though she may have been lawfully discharged for failing to
observe the employer's dress code).
