                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2013-EC-00928-SCT

DIMP POWELL

v.

MUNICIPAL ELECTION COMMISSION OF THE
TOWN OF ISOLA, MISSISSIPPI


DATE OF JUDGMENT:                          05/30/2013
TRIAL JUDGE:                               HON. JANNIE M. LEWIS
TRIAL COURT ATTORNEYS:                     ANDREW N. ALEXANDER, III
                                           SAMUEL L. BEGLEY
COURT FROM WHICH APPEALED:                 HUMPHREYS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   KATE MARGOLIS
                                           ANDREW N. ALEXANDER, III
ATTORNEY FOR APPELLEE:                     SAMUEL L. BEGLEY
NATURE OF THE CASE:                        CIVIL - ELECTION CONTEST
DISPOSITION:                               AFFIRMED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., CHANDLER AND KING, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Democratic candidate Bobbie Miller successfully challenged independent incumbent

Dimp Powell for the office of mayor of Isola, Mississippi. Prior to the election, the Municipal

Election Commission of Isola approved the placement of Miller’s name on the ballot despite

the fact that a Democratic Municipal Executive Committee was not in existence by the time

of the qualifying deadline for candidates. Powell challenged the Election Commission’s

decision in circuit court via a writ of mandamus, requesting the court to order the

Commission not to place Miller’s name on the ballot or, in the alternative, to order that any
votes cast for Miller not be counted. After an emergency evidentiary hearing, held the week

prior to the election, the court denied relief. Powell appeals. We hold that the circuit court

did not have jurisdiction to hear Powell’s challenge via a writ of mandamus. The appropriate

procedural mechanism for challenging the decision of a municipal authority is through a bill

of exceptions under Mississippi Code Section 11-51-75.

                          FACTS AND PROCEEDINGS BELOW

¶2.    Bobbie Miller, who ran a local daycare center in Isola, decided to run as a Democratic

candidate for mayor, challenging independent incumbent Dimp Powell. Miller filed her

statement of intent and $10 cash filing fee with the municipal clerk on January 21, 2013. The

municipal clerk accepted the documents. Isola did not at that time have a Democratic

Municipal Executive Committee. On March 6, the clerk contacted Miller and informed her

that she could not accept cash for the filing fee. Miller immediately exchanged the cash for

a money order. At that time, Miller asked if any other action on her part was needed, and the

clerk said no. The clerk also accepted a statement of intent and filing fee from Powell.

Miller’s money order and Powell’s check were made payable to the “Municipal Executive

Committee.”

¶3.    The city clerk,1 uncertain where to send the candidates’ statements of intent and fees,

sent both Powell’s and Miller’s papers and fees to the Secretary of State after consulting with

one of the incoming city election commissioners.2 The Secretary of State sent back a letter



       1
           This was the first election the clerk had handled in her official capacity.
       2
          Two of the three municipal election commissioners were also new at the job and,
at that time, had not yet attended training for the position.

                                                2
dated March 14, 2013, explaining that “the office of the Secretary of State does not receive

nor file qualifying petitions of municipal candidates,” and that “[a]bsent a municipal

executive committee, the municipal clerk cannot accept the statement of intent of a candidate

seeking to qualify as a party nominee in a primary election, and cannot accept the $10.00

filing fee required by statute . . . [u]nfortunately, Ms. Miller cannot be a candidate for Mayor

since the qualifying deadline for all municipal candidates was last Friday, March 8, 2013.”

The letter further noted that a filing fee and nomination through a municipal executive

committee is not required for independent candidates, that Powell’s fee should therefore be

returned to him and his qualifying documents forwarded to the Isola Municipal Election

Commission.

¶4.    After the city clerk shared copies of this letter with the relevant parties and public

officials, Miller immediately contacted the County Democratic Executive Committee. That

committee approved Miller’s candidacy and notified the Election Commission and city clerk

of Miller’s certification by letter on March 22. The County Executive Committee had not

been aware of Miller’s candidacy prior to the qualifying deadline, and did not notify the

municipal clerk prior to the qualifying deadline that it would be acting as a temporary

municipal executive committee.

¶5.    The City requested an opinion from the Attorney General, asking whether, under these

circumstances, Miller could be placed on the ballot. The Attorney General’s office issued an

official opinion dated April 22, 2013, offering that Miller was not a timely qualified




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candidate because the County Democratic Executive Committee had not made the decision

to act as the temporary municipal executive committee until after the qualifying deadline.3

¶6.    The Isola Municipal Election Commission met on May 24, 2013, and voted to accept

the County Democratic Executive Committee’s certification of Miller, in spite of the opinion

from the Attorney General. The Commission issued a written statement, noting that the error

was on the part of the clerk, that the lack of a (temporary) municipal executive committee

would have been resolved prior to the qualifying deadline had a delay not been created by

the documents having been mailed erroneously to the Secretary of State, and that Miller

should not be penalized when she had done everything she thought was required to qualify.

¶7.    Powell filed an Emergency Complaint for Writ of Mandamus, asking the circuit court:

       . . . . to issue a Writ of Mandamus to the Town of Isola, Mississippi’s
       Municipal Election Commission requiring that they remove candidate Bobbie
       Miller’s name from the Municipal Ballot for the June 4, 2013 election for
       Mayor. In the alternative, Plaintiff prays that this Court should issue a Writ of
       Prohibition to the Town of Isola, Mississippi’s Municipal Election
       Commission prohibiting that Commission from placing candidate Bobbie
       Miller’s name on the ballot as a Democratic candidate for the office of Mayor
       of the Town of Isola or, if such name appears on the ballot because of time
       restraints, prohibiting any votes for Ms. Miller from being counted . . .

Attached as exhibits to the petition were the letter from the Secretary of State returning the

statements of intent and filing fees to the municipal clerk, the letter from the Humphreys



       3
          See Ashford, Miss. A.G. Op. # 14-00121, 2013 WL 2200417 (April 22, 2013).
Whether a party executive committee must be in place by the qualifying deadline involves
a question of statutory interpretation this Court has never addressed. The Attorney General’s
office consistently has taken the position that the relevant statutes require the existence of
an executive or temporary executive committee by the qualifying deadline because, inter
alia, such committees have responsibilities related to carrying out the party primary that
cannot reasonably be performed if the committee is not in existence by the qualifying
deadline. Id.

                                              4
County Democratic Executive Committee certifying Bobbie Miller as a candidate, the

Attorney General’s opinion offering that Miller was not a timely qualified candidate, and the

Isola Municipal Election Commission’s letter to the municipal clerk finding that Miller

should be placed on the ballot.

¶8.    The court held an emergency evidentiary hearing on May 30, 2013, the week before

the election. The court heard the testimony of the municipal clerk, Bobbie Miller, and of the

three members of the Municipal Election Commission. The trial court denied Powell’s

request for relief and permitted Miller to remain on the ballot. The court noted that Miller had

done all she thought that she was required to do to qualify and should be permitted to run

since the error was on the part of the city clerk. Miller won the election, which took place on

June 4, 2013. Powell timely appeals to this Court. This Court denied Powell’s motions to

expedite the appeal.

                                       DISCUSSION

¶9.    Jurisdiction is a question of law this Court reviews de novo. Issaquena Warren

Counties Land Co., LLC v. Warren Cnty., 996 So. 2d 747, 749 (Miss. 2008).

¶10.   We find that the circuit court lacked jurisdiction to hear Powell’s challenge because

Powell failed to properly appeal the Commission’s decision by obtaining a bill of exceptions

as provided for in Mississippi Code Section 11-51-75. Section 11-51-75 provides:

       Any person aggrieved by a judgment or decision of the board of supervisors,
       or municipal authorities of a city, town, or village, may appeal within (10)
       days from the date of adjournment at which session the board of supervisors
       or municipal authorities rendered such judgment or decision, and may embody
       the facts, judgment and decision in a bill of exceptions which shall be signed
       by the person acting as president of the board of supervisors or other
       municipal authorities. The clerk thereof shall transmit the bill of exceptions to

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       the circuit court at once, and the court shall either in term time or in vacation
       hear and determine the same on the case as presented by the bill of exceptions
       as an appellate court, and shall affirm or reverse the judgment. If the judgment
       be reversed, the circuit court shall render such judgment as the board or
       municipal authorities ought to have rendered, and certify the same to the board
       of supervisors or municipal authorities. . . .

Miss. Code Ann. § 11-51-75 (Rev. 2012) (emphasis added).

¶11.   This Court held that a municipal election commission is a “municipal authority” for

purposes of section 11-51-75 in Town of Terry v. Smith, 48 So. 3d 507 (Miss. 2010). In

Town of Terry, the Terry Municipal Election Commission disqualified a democratic

candidate for mayor on a finding that the Democratic Executive Committee had been

improperly formed, and, “[b]ecause there was ‘no committee in place to qualify him’ and he

had not qualified as an at-large candidate, [he] was, by extension, disqualified.” Id. at 508.4

The candidate and the committee appealed through an inapplicable statute that provided

exclusive relief for contesting the qualifications of a candidate in a primary election. Id. This

Court affirmed the trial court’s position that the appropriate method of appeal was through

appeal by bill of exceptions under Section 11-51-75. We stated:

       . . . the Committee came to circuit court not to challenge an election, but to
       challenge the decision (made by a municipal authority) that the committee was
       improperly formed and nonexistent. The trial court, relying on the plain
       language of Mississippi Code Section 11-51-75, said that appeal by bill [of]
       exceptions was the appropriate vehicle for remedy. . . We agree with the trial
       court that appeal by bill of exceptions . . . was the appropriate mechanism for
       relief.




       4
        This Court decided Town of Terry on a procedural question, and, as in the case at
hand, did not address the merits of the commission’s decision.

                                               6
Id. at 510-511. Similarly, here, the challenge is to a municipal election commission’s

decision regarding the timeliness of the candidate’s qualification.

¶12.   The bill of exceptions serves as the objective record of the proceedings below, and

therefore must be examined and certified for authenticity by being signed and delivered to

the circuit court by the authority who made the decision. The responsibility of a municipal

authority when presented with a bill of exceptions is to review it, note any aspect of it that

appears to be inaccurate or incomplete, and then sign it as the correct record for the circuit

court to review. Reed v. Adams, 111 So. 2d 222, 340 (Miss. 1959). Here, instead of going

through this process of obtaining a record, Powell sought injunctive relief through a writ of

mandamus.

¶13.   A petition for writ of mandamus is a procedural tool a party can seek unilaterally to

prompt officials to perform their required duties when they fail to act. Hinds Cnty.

Democratic Exec. Comm. v. Muirhead, 259 So. 2d 692, 695-695 (Miss. 1972).5 For

example, if Powell had presented a bill of exceptions to the Commission for its review,

signature, and delivery to the court, and the Commission had refused to perform its




       5
         “The proper function of mandamus is to supply a remedy for inaction on the part of
an official or commission to whom it is directed. It is not a substitute for, nor intended to
serve, the purpose of other modes of review. It can direct an official or commission to
perform its official duty or to perform a ministerial act, but it cannot project itself into the
discretionary function of the official or the commission. Stated differently, it can direct
action to be taken, but it cannot direct the outcome of the mandated function. . .[t]hus, a court
could, if necessary, compel by mandamus an election commission or executive committee
to perform its statutory duty upon its failure to do so, or prohibit it by way of injunction or
writ of prohibition from exceeding its statutory authority in some respect; use of an
extraordinary writ, however, cannot be extended to actually telling the commission what
action to take.” Id. at 695-695, 774.

                                               7
ministerial duty to review, sign, and deliver it, then a writ of mandamus would be an

appropriate mechanism to prompt the authority to perform that task. Reed, 11 So. 2d at 399;

Roach v. Tallahatchie Cnty., 29 So. 93 (Miss 1901). But, when a municipal authority has

acted, and a party wishes to challenge the merits of that discretionary decision, the party must

obtain a bill of exceptions to serve as the record for the circuit court. Miss. Code Ann. § 11-

51-75 (Rev. 2012); Town of Terry v. Smith, 48 So. 3d 507 (Miss. 2010). A party cannot

sidestep this process of, in essence, designating the record for appeal, by asking the appellate

court to rely on the potentially selective presentation of facts and exhibits contained in a

unilateral petition for injunctive relief.

¶14.   The use of a writ of mandamus also was inappropriate in this case because Powell is

not alleging a violation of his due-process rights or asserting an opportunity to be heard.

Rather, his sole request for relief is a challenge to a discretionary decision the Commission

made after very thorough consideration of Powell’s position. In Wallace v. Town of

Edwards, 118 So. 3d 568 (Miss. 2013), a potential candidate sought a writ of mandamus

asking the circuit court to compel a municipal election commission to grant him a hearing

and issue a ruling on his challenge to its successive rejection of his candidacy due to lack of

sufficient signatures. A majority of the Court joined an order granting him relief. Three

justices joined a separate statement disagreeing that the appellant had been denied an

opportunity to be heard before the commission and that a bill of exceptions would have been

the appropriate way to challenge the commission’s decision to reject his multiple attempts

to qualify.




                                               8
¶15.   The due-process challenge that split this court in Wallace is not present in this case.

We note that, in this case, the Commission does not appear to have held a formal hearing in

which Powell formally presented his case. However, Powell does not challenge the absence

of a hearing or allege that proceeding before the Commission denied him due process. To the

contrary, the record reflects that the parties had extensive transparent communication with

each other and that the Commission took the process of its decision very seriously, going so

far as to request and consider an Attorney General’s opinion on the issue. Whether the

Commission made the right decision is a question for an appeal via a bill of exceptions.

¶16.   Finally, the procedural deficiency here cannot be considered harmless. A circuit court,

sitting as an appellate court, should not hold an evidentiary hearing when considering a bill

of exceptions. Falco Lime, Inc., v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d

711, 720 (Miss. 2002). We have permitted harmless-error review where a circuit court

erroneously held an evidentiary hearing when reviewing a bill of exceptions. Id. at 720-721

(holding that the evidentiary hearing was harmless error because sufficient evidence was in

the bill of exceptions for the circuit court to have reached the same result as if the hearing

had not taken place). But unlike Falco, the appeal here did not originate with a proper bill

of exceptions. We decline to extend harmless-error review to the fundamental jurisdictional

posture of the case. We decline to make it our task to review the petition and exhibits for

retroactive authentication of the proceedings below.

                                      CONCLUSION

¶17.   Powell’s petition for writ of mandamus was ineffective to appeal the Municipal

Election Commission’s decision that Miller should be placed on the ballot. The statutory

                                              9
method of appeal from the decision of a municipal authority is to obtain a bill of exceptions

under Mississippi Code Section 11-51-75. We affirm the outcome of the circuit court’s

holding, but on the ground that the circuit court lacked jurisdiction to hear the challenge via

a writ of mandamus. Because we affirm on jurisdictional grounds, we do not reach the merits

of whether Miller’s name should not have been permitted on the ballot when there was no

Democratic Municipal Executive Committee in existence at the time of the qualifying

deadline.

¶18.   AFFIRMED.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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