                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2015-EC-01677-SCT

TASHA DILLON

v.

DAVID MYERS


DATE OF JUDGMENT:                         10/08/2015
TRIAL JUDGE:                              HON. JAMES D. BELL
COURT FROM WHICH APPEALED:                PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  PIETER JOHN TEEUWISSEN
                                          ANTHONY RENARD SIMON
ATTORNEYS FOR APPELLEE:                   BRANDON CURRIE JONES
                                          DAVID WAYNE BARIA
NATURE OF THE CASE:                       CIVIL - ELECTION CONTEST
DISPOSITION:                              REVERSED AND REMANDED - 04/06/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Tasha Dillon contested the results of the August 4, 2015, Democratic primary for

Mississippi House of Representatives (“House”) District 98.1 The Democratic primary’s

purpose was to determine the party’s candidate or nominee in the November general election.

The Pike County Circuit Court dismissed the case for lack of subject-matter jurisdiction.



       1
        Dillon alleged numerous election-code violations by the Pike County Election
Commission, the circuit clerk, and her opponent, David Myers. The allegations included
improper election-day activities, improperly programmed voting machines, insufficient
equipment, confusion of ballots in split precincts, and mishandling of both absentee and
affidavit ballots.
Dillon appealed. As the circuit court erred in finding it lacked jurisdiction, we reverse and

remand for further proceedings consistent with this opinion.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Tasha Dillon and David Myers were candidates in the Democratic primary for House

District 98, held in Walthall and Pike Counties. The Pike County Election Commission

(“PCEC”) certified Myers as the winner by a vote of 2,003 to 1,859. On August 24, Dillon

filed a petition of contest with the Mississippi Democratic Executive Committee (“MDEC”)

and filed an amended petition on September 1. Two days later, Dillon petitioned the Pike

County Circuit Court for judicial review, as provided in Mississippi Code Section 23-15-927.

¶3.    In the circuit-court proceeding, the Pike County Board of Election Commissioners and

the Pike County Circuit Clerk (“Election Officials”) moved to intervene. The Election

Officials moved to dismiss for lack of subject-matter jurisdiction. Myers filed a separate

motion to dismiss for lack of subject-matter jurisdiction. Following a hearing on the motions,

the Pike County Circuit Court dismissed the contest for lack of subject-matter jurisdiction,

reasoning that Article 4, Section 38 of the Mississippi Constitution and Section 23-15-955

of the Mississippi Code controlled, but acknowledging the existence of conflicting caselaw

on the issue. Dillon appealed.

                                          ISSUES

¶4.    Dillon raises two issues on appeal, which have been restated for clarity:

       I.     Whether the trial court erred in dismissing for lack of subject-matter
              jurisdiction.




                                              2
       II.     Whether the trial court erred in allowing the Election Officials to
               intervene.

                                          ANALYSIS

I.     Whether the trial court erred in dismissing for lack of subject-matter
       jurisdiction.

¶5.    This Court reviews questions of law, including jurisdictional questions, de novo.

McDaniel v. Cochran, 158 So. 3d 992, 995 (Miss. 2014); McCain Builders, Inc. v. Rescue

Rooter, LLC, 797 So. 2d 952, 954 (Miss. 2001).

¶6.    Dillon argues the circuit court had jurisdiction pursuant to Mississippi Code Section

23-15-927.2 Myers argues the House had exclusive jurisdiction pursuant to Section 38 of the

Mississippi Constitution.3 Caselaw arguably supports both positions.


       2
        Section 23-15-927 provides, in pertinent part:

       When and after any contest has been filed with the . . . State Executive
       Committee, and the executive committee having jurisdiction fails to promptly
       meet . . . the contestant shall have the right forthwith to file in the circuit court
       of the county in which the irregularities are charged to have occurred . . . a
       sworn copy of his protest or complaint, together with a sworn petition, setting
       forth with particularity how the executive committee has wrongfully failed to
       act or to fully and promptly investigate . . . with a prayer for a judicial review
       thereof. A petition for judicial review must be filed within ten (10) days after
       any contest or complaint has been filed with an executive committee.

Miss. Code Ann. § 23-15-927 (Rev. 2015).
       3
        Miss. Const. art. 4, § 38 (“Each house shall . . . judge of the qualifications, return and
election of its own members.”). This provision of the Mississippi Constitution has been
codified as follows:

       Except as otherwise provided by Section 23-15-961, the person contesting the
       seat of any member of the Senate or House of Representatives shall comply
       with the provisions of this section. Section 38, Mississippi Constitution of
       1890, provides that each house of the Mississippi State Legislature shall judge

                                                3
¶7.    In the 2003 Republican Primary for House District 56, Jep Barbour was certified the

winner over his opponent, Phillip Gunn. Barbour v. Gunn, 890 So. 2d 843, 844 (Miss.

2004). Gunn filed a contest with the State Republican Executive Committee. Id. When the

executive committee failed to act promptly, Gunn sought judicial review. Id. The Circuit

Court of Hinds County ordered a new election in two precincts. Id. Barbour appealed,

arguing the circuit court lacked jurisdiction because Gunn had not given the executive

committee time to act. Id. at 846. This Court held

       that the trial court properly found that it had jurisdiction to proceed in this
       matter. Miss. Code Ann. § 23–15–927 plainly states that an election
       “contestant shall have the right forthwith to file in the circuit court of the
       county wherein the irregularities are charged to have occurred,” if the
       “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.”

Id. at 847. Barbour supports Dillon’s argument.



       the qualifications, return and election of its membership. Pursuant to that
       authority, the House of Representatives shall have exclusive jurisdiction over
       an election contest regarding the seat of any member of the House of
       Representatives, and the Senate shall have exclusive jurisdiction over an
       election contest regarding the seat of any member of the Senate. An election
       contest regarding the seat of a member of the House of Representatives or the
       Senate shall be filed with the Clerk of the House or the Secretary of the
       Senate, as the case may be, within thirty (30) days after a regular general
       election or ten (10) days after a special election to fill a vacancy. The
       legislative resolution of the election contest shall be conducted in accordance
       with procedures and precedents established by the House of Representatives
       or the Senate, as the case may be.

Miss. Code Ann. § 23-15-955 (Rev. 2015). Section 23-15-961 provides for judicial review
of one challenging the qualifications of a party in a primary election. See Miss. Code Ann.
§ 23-15-961 (Rev. 2015).

                                              4
¶8.    Conversely, Myers argues the jurisdictional exclusivity of Section 38 of the

Mississippi Constitution controls and was neither raised nor argued by either Barbour or

Gunn. Indeed, this Court previously has held that Section 38 applies to primary election

contests for the Mississippi Legislature (albeit without addressing Section 247 of the

Constitution, which specifically addresses party primary elections). See Foster v. Harden,

536 So. 2d 905 (Miss. 1988); Henry v. Henderson, 697 So. 2d 447 (Miss. 1997).

¶9.    In Foster, two candidates were certified for a runoff election in the Democratic

primary for Senate District 28. Foster, 536 So. 2d at 906. Foster was not certified and filed

a petition with the executive committee challenging the qualifications of the candidates

certified to run in the primary runoff. Id. When the committee denied her petition, Foster

sought judicial review. Id. Harden filed a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Section 38 of the Mississippi Constitution. Id. When the trial court

dismissed, Foster appealed. Id. This Court found Section 38 “provides in unambiguous

language that each house of the legislature ‘shall judge of the qualifications, return and

election of its own members.’” Id. The Court held Section 38 vests exclusive jurisdiction in

the Legislature, and thus the Judiciary was without authority to hear the case. Id. at 907.

¶10.   The Foster dissent, however, charged the Court with “dep[a]rt[ing] from precedent

barely a year old and from a premise fundamental in our law,” opining that the Court

previously had held that, in an primary election, “residency qualifications of a candidate are

proper subject matter for a special tribunal in an election contest hearing.” Id. at 907-08

(Zuccaro, J., dissenting) (citing Gadd v. Thompson, 517 So. 2d 576 (Miss. 1987)). Indeed,



                                              5
Gadd affirmed judicial review of a candidate’s qualifications following the Democratic

primary election for House District 13. Gadd, 517 So. 2d at 577-79.

¶11.   While Foster involved a qualification issue following a primary election, jurisdiction

of a primary election contest was addressed in Henry. Henry and Henderson were candidates

in the Democratic primary for House District 26. Henry, 697 So. 2d at 448. Henry challenged

the election, first through the executive committee and then through the circuit court. Id. The

circuit court granted Henderson’s motion to dismiss for lack of jurisdiction based on Foster

and Section 38 of the Mississippi Constitution. Id. On appeal, Henry argued that Section 38

applied only to qualifications and competence of legislators and not to election contests;

therefore Foster should not apply. Id. at 450. The Court rejected this argument. Id. at 451

(“The Constitution gives authority to each house to judge the return and election of its own

members. Return and election includes the proper number of votes cast for each candidate.

Therefore, as in Foster, the lower court would be without jurisdiction.”).

¶12.   We are tasked today with reconciling these competing lines of cases with our

Constitution. We thus turn our attention first to the supreme law of this State, the Mississippi

Constitution of 1890, comparing Section 38 (“Each house shall elect its own officers, and

shall judge of the qualifications, return and election of its own members.”)4 and Section 247

(“The Legislature shall enact laws to secure fairness in party primary elections, conventions,

or other methods of naming party candidates.”).5 These sections were adopted at the same



       4
        Miss. Const. art. 4, § 38.
       5
        Miss. Const. art. 12, § 247.

                                               6
time.6 In exercise of the Constitutional mandate of Section 247, the Legislature subsequently

enacted Section 23-15-927, providing for judicial review of primary election contests. The

Legislature likewise codified its authority to decide contests involving its own members, but

only following a general or special election. See Miss. Code Ann. § 23-15-955. Notably,

Section 23-15-955 requires challenges to legislative seats to be filed thirty days after a

general election or ten days after a special election. Conspicuously absent from that code

section is any mention of primary elections, which the Legislature separately addressed in

Section 23-15-927. We find the absence of any reference to a primary election in Section 23-

15-955 and the specific reference to general/specific elections in Section 23-15-955, along

with the specific inclusion of primary election contests in Section 23-15-927, evinces the

Legislature’s recognition of the distinction we declare today. The election at issue sub judice

specifically concerns a party primary election, which brings this case squarely within the

purview of the more specific Section 247—wherein the people directed the Legislature to

enact laws to secure fairness in party primary elections. The adoption of Sections 23-15-955

and 23-15-927 is clear support for the distinction and validates our holdings prior to Henry

and Foster.7




         6
        We are asked today to determine whether a circuit court has subject-matter
jurisdiction to hear a particular case, which requires an analysis of our Constitution and
election statutes. Although neither party directs this Court to Section 247, an analysis of that
section is necessary, for the statute at issue was breathed into existence by the authority of
that section.
         7
         Further validation is found in the adoption of internal House Rule 104(B). See n.9
infra.

                                               7
¶13.   The Henry and Foster Courts failed to address the interplay between Sections 38 and

247. Prevailing in a primary election creates no right to demand of the Legislature a seat.8

Prevailing in a primary election creates no right to challenge another who has taken a seat.

A primary election does not transform a candidate or nominee of a party into a member of

the House or Senate. Prevailing in a primary merely makes one the official party candidate

or nominee certified to run in the general election. Members of the Legislature are elected

in general (or special) elections, not primaries; hence the Constitution granted the Legislature

the right to hear legislative election contests following a general (or special) election.

¶14.   The primary election at issue in this case did not result in any person securing the right

to claim the office as a member of the House of Representatives, District 98. The primary

election at issue in this case did not result in any person becoming a member of the

Legislature. It was not a general election. The primary election determined only the

Democratic nominee for the general election. Only the subsequent general election could

result in one acquiring the right to become a member of the Legislature. The dissent conflates

the principles governing general elections with those governing primaries. We agree that

Section 38 places judging the election of members of the Legislature in the Legislature’s

bailiwick, but legislative members are elected in general (or special) elections.

¶15.   In order to restore harmony to our Constitution and election laws, we reaffirm the

Legislature’s exclusive jurisdiction, pursuant to Section 38 of the Mississippi Constitution,



       8
       Even in an uncontested general election, a candidate may be removed from
consideration by death, resignation, withdrawal, or other reason. See Miss. Code Ann. §§ 23-
15-363; 23-15-365 (Rev. 2015).

                                               8
to hear election contests involving a seat in the Mississippi Legislature following a general

or special election. However, the jurisdiction bestowed on the Legislature by Section 38 does

not apply to a primary election for a legislative office, for the same Constitution, in Section

247, requires the Legislature to enact laws to secure fairness in primary elections.9 Pursuant

to that mandate, the Legislature first granted the parties’ executive committees jurisdiction

to resolve primary election contests. If a contestant is dissatisfied with the timeliness or final

decision of the executive committee, the Legislature endowed the judicial branch with full

jurisdiction to review all primary election contests.10 Thus, the circuit court erred in finding

it lacked subject-matter jurisdiction in the case sub judice.

¶16.   As this opinion reveals, resolution of this issue has a checkered past. The prior

opinions failed to address Section 247 of our Constitution, vis a vis Section 38.11 In so doing,

we have denied citizens, like Dillon, the right to contest a primary election, codified by the

Legislature as directed by the Constitution. Thus the holdings in Foster and Henry have had



       9
         Not only did the Legislature enact statutes governing primary election contests,
pursuant to Section 247, we take judicial notice of the adoption of House Rule 104B (“The
procedure for handling the contest of the election, other than a primary election, of a member
of the Mississippi House of Representatives shall be as follows: (1) Anyone desiring to
contest the election, other than a primary election . . . .”) as evidence of the Legislature’s
intent to commit review of primary election contests to the Judiciary. While the dissent does
not discern the line drawn between primary and general elections (see Dis. Op. at ¶ 25), the
line was drawn by the drafters of our Constitution, not by us.
       10
         Miss. Code Ann. §§ 23-15-927 (providing for judicial review of party primary
elections); 23-15-961 (providing for judicial review of challenges to candidate qualifications
in a primary election).
       11
        See, e.g., Foster v. Harden, 536 So. 2d 905 (Miss. 1988); Henry v. Henderson,
697 So. 2d 447 (Miss. 1997).

                                                9
a “substantial adverse or significantly harmful effect upon the people.” State ex. rel. Moore

v. Molpus, 578 So. 2d 624, 635 (Miss. 1991). To the extent any of our prior cases are

contradictory to this opinion, they are expressly overruled.12

II.    Whether the trial court erred in allowing the Election Officials to intervene.

¶17.   Section 23-15-931 governs procedures for judicial review of an election contest.

       [T]he circuit clerk shall issue subpoenas for witnesses . . . and he shall also
       issue a summons to each of the five (5) election commissioners of the county
       . . . requiring them to attend the hearing, throughout which the commissioners
       shall sit with the judge as advisors or assistants in the trial and determination
       of the facts, and as assistants in counts, calculations and inspections, and in
       seeing to it that ballots, papers, documents, books and the like are diligently
       secured against misplacement, alteration, concealment or loss both in the
       sessions and during recesses or adjournments. The judge is, however, the
       controlling judge both of the facts and the law, and has all the power in every
       respect of a circuit judge in termtime. The tribunal shall be attended by the
       sheriff, and clerk, each with sufficient deputies, and by a court reporter. . . .
       The special tribunal, after the contest or complaint has been fully heard anew,
       shall make a finding dictated to the reporter covering all controverted material
       issues of fact, together with any dissents of any commissioner, and thereupon,
       the trial judge shall enter the judgment which the county executive committee
       should have entered, of which the election commissioners shall take judicial
       notice, or if the matter be one within the jurisdiction of the State Executive
       Committee, the judgment shall be certified and promptly forwarded to the
       Secretary of the State Executive Committee, and, in the absence of an appeal,
       it shall be the duty of the State Executive Committee forthwith to reassemble
       and revise any decision theretofore made by it so as to conform to the judicial
       judgment[.]

Miss. Code Ann. § 23-15-931 (Rev. 2015).

¶18.   Dillon argues that because the Election Officials have statutorily prescribed duties,

intervention was improper. The Election Officials counter that the Rules of Civil Procedure

       12
         “One accepted ground for judicial overruling of a demonstrably erroneous prior
constitutional interpretation is that, across the years, it has produced great and sustained
harm; . . . if it is clearly . . . hurtful.” Molpus, 578 So. 2d at 635.

                                              10
permit intervention by anyone “when an applicant’s claim or defense and the main action

have a question of law or fact in common.” M.R.C.P. 24(b)(2). Because Dillon alleges

numerous election-code violations by the Election Officials, they argue their claims and

defenses and Dillon’s main action have a question of law or fact in common.

¶19.      Rule 24 notwithstanding, Rule 81 provides that the Rules of Civil Procedure “are

subject to limited applicability” in actions “generally governed by statutory procedures,”

including “proceedings pertaining to election contests.” M.R.C.P. 81(a)(4). Section 23-15-

931 prescribes duties for the circuit clerk and the election commissioners during judicial

review of an election contest. The circuit clerk is a mandatory participant, as are the election

commissioners, who serve as advisors and assistants to the trial judge. Therefore, it was error

to allow the Election Officials to intervene as parties when the statute mandates contrary

duties.

                                       CONCLUSION

¶20.      When Section 38 and Section 247 of the Mississippi Constitution are read together,

the Constitution vests the Legislature with exclusive jurisdiction to hear legislative election

contests following general (or special) elections. But that jurisdiction does not extend to

primary election contests. In exercising the mandate of Section 247 to enact laws to secure

fairness in party primaries, the Legislature granted the Judiciary jurisdiction to hear all

primary election contests. Therefore, the circuit court erred in dismissing this case for lack

of subject-matter jurisdiction. Also, because intervention is inconsistent with the Election

Officials’ statutory duties during judicial review of an election contest, permitting their



                                              11
intervention was error. The judgment of the Pike County Circuit Court is reversed and the

case is remanded for further proceedings consistent with this opinion.

¶21.   REVERSED AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, MAXWELL, BEAM
AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.

       COLEMAN, JUSTICE, DISSENTING:

¶22.   I wholly agree with the majority in one respect. “We are tasked today with reconciling

[these] competing lines of cases with our Constitution.” (Maj. Op. at ¶ 12). However,

because I am of the opinion that Section 38 mandates by its language that disputes regarding

election to either house of our Legislature, no matter when they may arise during the elective

process, be decided in the appropriate house, I respectfully dissent.

¶23.   Article 4, Section 38 of the Mississippi Constitution of 1890 provides, “Each house

shall elect its own officers, and shall judge of the qualifications, return and election of its

own members.” In twelve of its twenty words lies the answer to today’s case. “Each house

. . . shall judge . . . the . . . return and election of its own members.”

¶24.   The majority holds that the broader Section 247, which by its terms applies to all party

elections, conventions, and methods of naming party candidates governs, but I believe it does

so in the first place based upon a misinterpretation of the words “of its own members” in

Section 38 and, in the second place, in disregard of the principle of construction that directs

us to give effect to a narrow provision of law over a broader one, and, in the third instance,

in violation of the doctrine of stare decisis.



                                                 12
¶25.   The majority writes, “A primary election does not transform a candidate or nominee

of a party into a member of the House or Senate.” (Maj. Op. at ¶ 13). The majority reasons

that, because winning a party primary makes a candidate the candidate only for a party, or,

if one will, a candidate at a higher level, it takes the candidate outside of the parameters of

Section 247. I do not discern within the text of our Constitution the line drawn by the

majority between the primary and the general election for purposes of electing members of

the Legislature. The whole process is part of electing members of the Legislature, and

Section 38 explicitly places judging the election of members of the Legislature in the

Legislature’s bailiwick. In light of the straightforward wording of Section 38, there exists

no real difference between the different stages of the election process, and I fear that the

majority today adds words to the Constitution to reach its result.

¶26.   By the above-quoted language and the language that follows it, the majority suggests

that Section 38 limits itself to contests wherein an incumbent member is a party to the

contest. However, Section 38 applies to both the return and the election of its own members.

If Section 38 applied only to the return of its members, I would agree with the majority, but

the drafters’ inclusion of the words “and election” significantly broadens its impact.

¶27.   I further base my difference of opinion with the majority on the principle of

construction that “[t]o the extent that two constitutional or statutory provisions overlap or

conflict, specific provisions control over general provisions.” Harrison v. State, 800 So. 2d

1134, 1137 (¶ 14) (Miss. 2001) (citing Yarbrough v. Camphor, 645 So. 2d 867, 872 (Miss.

1994) (citing McCrory v. State, 210 So. 2d 877, 877–78 (Miss. 1968); Lenoir v. Madison



                                              13
County, 641 So. 2d 1124, 1128 (Miss. 1994))). Section 38 applies only to legislative

elections, but Section 247 applies to all party elections, conventions, and other methods for

electing party candidates for any and every elected office in the state in which candidates run

with party affiliation. As the narrower provision, Section 38 controls.

¶28.   Pursuant to the foregoing reasoning, I would hold that the cases rejected by the

majority including Foster v. Harden, 536 So. 2d 905, 907 (Miss. 1988), and Henry v.

Henderson, 697 So. 2d 447 (Miss. 1997), were correctly decided and provide the correct

guidance for all legislative election contests. In Foster, which involved a contest that

occurred at the primary level, the Court wrote, “Section 38 vests competence of Harden’s

qualifications for office--including whether she meets the residency qualifications--in the

Senate. Accordingly, there is no authority in the judiciary to hear this case. The court below

correctly dismissed for lack of subject matter jurisdiction.” Harden, 536 So. 2d at 907. The

Harden Court also wrote as follows:

       Section 38 of the Constitution provides in unambiguous language that each
       house of the legislature “shall judge of the qualifications, return and election
       of its own members.” The almost universal constitutional doctrine in the
       United States and the several states which have constitutions containing this
       or similar provisions is that:

              Each legislative body is the sole judge of the elections, returns,
              and qualifications of its own members, and its action in
              admitting or expelling a member is not reviewable in the courts.
              Furthermore, a statute which requires a court to inquire into the
              commission of corrupt practices in the election of a member of
              the legislature is not constitutional.

       16 C.J.S., Constitutional Law § 201 (1984).

Harden, 536 So. 2d at 906. The Harden Court continued,

                                              14
       The point is advanced that whether Harden meets the residency requirement
       of Section 42 is a question of law, competence of which is necessarily
       committed to the judiciary. We are not concerned with the nature of the
       substantive question presented but with locating the legal power to decide it.
       That we have before us a question of law cannot be doubted for Section 42 is
       a rule of law. Still, it does not follow that the question may be considered only
       in the courts. Judicial competence may not extend to questions of law,
       decision of which is constitutionally placed somewhere else, for “there is no
       natural law of separation of powers. Rather, the powers of government are
       separate only insofar as the Constitution makes them separate.” Dye v. State,
       ex rel. Hale, 507 So. 2d 332, 346 (Miss. 1987).

       Section 38 vests competence of Harden’s qualifications for office – including
       whether she meets the residency qualifications – in the Senate. Accordingly,
       there is no authority in the judiciary to hear this case. The court below
       correctly dismissed for lack of subject matter jurisdiction.

Harden, 536 So. 2d at 906-907.

¶29.   Indeed, as the majority acknowledges, in Barbour v. Gunn, 890 So. 2d 843 (Miss.

2004), Section 38 was neither raised nor argued. (Maj. Op. at ¶ 8). Therefore, as a third and

final ground for my disagreement with the majority, in addition to the language of Section

38 and the principle of applying specific provisions over general ones, I rely on the principle

of stare decisis and close by pointing out that the Foster and Henry Courts already have

provided the result the Court should be following in the case sub judice. The issue before

us already has been decided, and the majority identifies no compelling reason to stray from

our earlier pronouncements on the matter.




                                              15
