                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-EC-01327-SCT

ELECTION COMMISSION OF THE TOWN OF
EDWARDS, MISSISSIPPI

v.

MARCUS L. WALLACE


DATE OF JUDGMENT:                         08/02/2013
TRIAL JUDGE:                              HON. VERNON R. COTTEN
TRIAL COURT ATTORNEYS:                    HOWARD BROWN
                                          ROBERT L. GIBBS
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   HOWARD BROWN
ATTORNEY FOR APPELLEE:                    ROBERT L. GIBBS
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED - 07/31/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Marcus L. Wallace sought to run as an independent candidate in the June 4, 2013,

mayoral election in Edwards, Mississippi. The Edwards Municipal Election Commission

(“the Commission”) declined to place his name on the ballot, questioning the validity of

certain signatures on Wallace’s petition for candidacy. Following an emergency appeal to

this Court and a granted writ of mandamus directing the Commission to conduct a hearing,

the Commission again denied Wallace’s petition to be placed on the ballot. Because we agree

with the determination of the Special Circuit Judge of the Second Judicial District of Hinds
County that the Commission improperly applied Mississippi Code Section 1-3-76 (Rev.

2005), and because we find that Wallace’s name should have been placed on the mayoral

ballot, we affirm.

                         FACTS AND PROCEEDINGS BELOW

¶2.    In an effort to secure placement on the ballot for the municipal election to be held in

Edwards on June 4, 2013, on March 7, 2013, Wallace filed with a deputy municipal clerk of

the Town of Edwards a Qualifying Statement of Intent and a Candidate Petition. Wallace’s

petition purported to include the signatures of sixty qualified electors pursuant to Mississippi

Code Section 23-15-361(1)(a) (Rev. 2007).1 The next day, March 8, 2013, the Election

Commission met to certify candidates for the 2013 General Election. The Commission found

the names of only thirty-three qualified voters among the sixty signatures on Wallace’s

petition for candidacy. Specifically, the Commission found that eighteen signatures were

“invalid,” that five signatures were “outside corporate limits,” that three signatures were “not

registered” voters, and that one signature was a “duplicate.”




       1
       Mississippi Code Section 23-15-361 (Rev. 2007) provides, in pertinent part, the
following:

       (1)    The municipal election commissioner designated to have the ballots
              printed shall also have printed on the ballot in any municipal election
              the name of any candidate who, not having been nominated by a
              political party, shall have been requested to be a candidate for any
              office by a petition filed with the clerk of the municipality . . . and
              signed by not less than the following number of qualified electors:

              (a)     For an office elected by the qualified electors of a municipality
                      having a population of one thousand (1,000) or more, not less
                      than fifty (50) qualified electors.

                                               2
¶3.    On March 18, 2013, Wallace telephoned Municipal Election Commissioner Ethel

Thomas-Heard regarding the purported invalidity of signatures on his petition and scheduled

a meeting with the Commission for that same day. Wallace attended, accompanied by his

attorneys, Robert Gibbs and Mary Margaret Waycaster. The Commission decided at the

meeting that ten signatures it previously had deemed invalid were, in fact, valid signatures.

Nevertheless, the Commission found that Wallace only had “43 and he must have 50

signatures to qualify as a candidate.”

¶4.    Then, on March 27, 2013, Wallace filed a “Petition to be Placed on the Ballot” as an

independent mayoral candidate with the Commission.2 The refusal of the Commission to

schedule a hearing on Wallace’s petition resulted in his filing an Emergency Complaint for

Writ of Mandamus in the Circuit Court of the Second Judicial District of Hinds County.

Wallace asked the circuit court to order the Commission to conduct a hearing on his petition.

The circuit court conducted a hearing on April 23, 2013, and on the following day denied

Wallace’s Complaint for Writ of Mandamus.3 Wallace then filed an emergency appeal in this

Court. In a May 16, 2013, en banc order, this Court reversed and remanded the case,

directing the circuit court to grant Wallace’s Complaint for Writ of Mandamus. Wallace v.

Election Comm’n of the Town of Edwards, 118 So. 3d 568 (Miss. 2013). That same day,

the circuit court ordered the Commission to conduct a hearing on Wallace’s qualifying

petition.


       2
           This petition is not included in the record on appeal.
       3
         Neither Wallace’s Emergency Complaint for Writ of Mandamus nor the order of the
Circuit Court of the Second Judicial District of Hinds County denying his complaint appears
in the record on appeal.

                                                3
¶5.    The hearing took place on May 21, 2013. Wallace, along with his attorney, presented

to the Commission seven affidavits from individuals attesting that they previously had signed

Wallace’s initial Candidate Petition. The Commission, however, held that Mississippi Code

Section 1-3-76 4 applied and that the statutory procedure for contesting the disqualification

of signatures had not been followed. Aggrieved, Wallace filed a Bill of Exceptions and

Notice of Appeal on May 28, 2013. Following the recusal of all circuit judges of the Second

Judicial District of Hinds County (Judges Green, Kidd, Gowan, and Weill), this Court

appointed the Honorable Vernon R. Cotten as a special judge to preside over the matter.

¶6.    Judge Cotten, following a hearing on Wallace’s Bill of Exceptions and Notice of

Appeal, conducted a hearing on June 6, 2013. In Findings of Fact and Conclusions of Law

entered July 22, 2013, he found that, “[w]ith no evidence to contradict these affidavits, the

Court finds that the Election Commission committed error[] when it failed to consider the

affidavits presented by Wallace” and that Section 1-3-76 was inapplicable. Judge Cotten set

aside the June 4, 2013, mayoral election and ordered a new election with Wallace’s name on




       4
           Mississippi Code Section 1-3-76 (Rev. 2005) provides the following:

       When any petition is filed by qualified electors of a county or municipality
       requesting a vote on matters affecting all or any portion of a county or
       municipality, the certifying official shall post a list of all names disqualified
       from the petition and the reason for disqualification at the courthouse or city
       hall, as the case may be. A person whose signature has been disqualified by
       the certifying official may, within ten (10) days after said notice has been
       posted, appear before such certifying official and present evidence of his
       qualification accompanied by a notarized affidavit stating the reason that his
       signature is qualified for the petition. Based upon such information, the
       certifying official shall reconsider his disqualification and may allow the
       signature to be counted if such action appears justified.

                                              4
the ballot, certifying the circuit court’s findings to the Governor, “who has the exclusive

power to do all things necessary to effectuate a new election. . . .” Jack Wilson, Legal

Counsel to the Governor, sent a letter on August 1, 2013, telling Judge Cotten that:

       [i]t is my understanding that this case was appealed to the Circuit Court
       pursuant to Miss. Code Ann. § 11-51-75,5 in accordance with Town of Terry
       v. Smith, 49 So. 3d 507 (Miss. 2010), which the Supreme Court seems to
       consider an ordinary civil appeal rather than a true election contest under the
       Mississippi Election Code. See id., ¶ 8 (“[T]he [plaintiff] came to circuit court
       not to challenge an election, but to challenge the decision (made by a
       municipal authority) [excluding a candidate from the general election ballot].”)

On August 2, 2013, Judge Cotten entered a Final Judgment, adjudicating that Wallace had

qualified as an independent candidate for mayor and ordering that an election be held, with

Wallace’s name on the ballot, on September 3, 2013. The Commission appeals to this Court.

¶7.    On appeal, the Commission raises the following five issues:

       I.       Whether the Commission’s decision that Wallace did not have a
                sufficient number of qualified signatures on his Petition to be an
                Independent Candidate for Mayor was reasonable and fairly
                debatable such that their decision should have been upheld by the
                circuit court.

       II.      Whether the circuit court’s order setting a special election violates
                the doctrine of separation of powers based on the facts of this case.




       5
           Mississippi Code Section 11-51-75 (Rev. 2012) provides the following:

       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 ten (10)
       days . . . and may embody the facts, judgment and decision in a bill of
       exceptions . . . . The clerk thereof shall transmit the bill of exceptions to the
       circuit court at once, and the court shall either in term time or vacation hear
       and determine the same of the case as presented by the bill of exceptions as an
       appellate court, and shall affirm or reverse the judgment.

                                              5
       III.     Whether the burden of proof was improperly placed on the
                Commission.

       IV.      Whether the circuit court improperly found that Miss. Code Ann.
                § 1-3-76 does not apply to the facts of this case.

       V.       Whether the fact that no election contest was filed in this case is
                outcome determinative.

¶8.    In reviewing the determination of the circuit court, we address the application of

Section 1-3-76 and whether the Commission erred by failing to accept seven affidavits

submitted by Wallace in support of his petition for candidacy. We find no merit in the

Commission’s remaining arguments.

                                      DISCUSSION

¶9.    The parties disagree respecting which standard this Court must apply in reviewing the

present case. The Commission asserts that the standard of review applied to bills of

exception 6 is limited to a review of the record “of the testimony made or proffered, to

determine whether or not the acts and orders of the board are reasonable and proper or

arbitrary or capricious or beyond the power of the board to make or whether they violate any

constitutional right of the complaining party.” Riley v. Jefferson Davis County, 669 So. 2d

748, 750 (Miss. 1996). The Commission argues that its decision that all of the signatures

affixed to Wallace’s candidacy petition could not be counted in accordance with the

applicable election statutes was “fairly debatable,” and thus not “arbitrary and capricious.”

See City of Biloxi v. Hilbert, 597 So. 2d 1276, 1280-81 (Miss. 1992) (quoting Saunders v.

City of Jackson, 511 So. 2d 902, 906 (Miss. 1987)) (“‘fairly debatable’ is the antithesis of


       6
           See Miss. Code Ann. §11-51-75 (Rev. 2012).

                                             6
arbitrary and capricious. If a decision is one which could be considered ‘fairly debatable,’

then it could not be considered arbitrary and capricious . . . .”). Because “many of the

signatures looked the same,” because the Commissioners have “been trained” not to count

signatures having the same appearance, and because “[n]one of [the individuals whose

signatures were disqualified by the Commission] contested the disqualification of their

name[s] in accordance with this statutory scheme,” Section 1-3-75, the Commission argues

that its decision to withhold Wallace’s name from the mayoral ballot was fairly debatable and

thus not arbitrary and capricious.

¶10.   Conversely, Wallace claims that, because “[t]he decision of the Election Commission

was based entirely on its interpretation of [Section] 1-3-76, not on any disputed facts,” the

“issue before this Court is strictly a matter of law.” “Legal errors are subject to a de novo

review.” Baymeadows, LLC v. City of Ridgeland, 131 So. 3d 1156, 1059 (Miss. 2014)

(quoting ABC Mfg. Corp. v. Doyle, 749 So. 2d 43, 45 (Miss. 1999)). Following Wallace’s

submission of seven affidavits at the Commission hearing, the Commission denied Wallace’s

petition pursuant to Section 1-3-76, holding that the statutory “procedure has not been

followed with the presentation of the affidavits submitted in today’s hearing.” The circuit

court reversed, holding that Section 1-3-76 did not apply and, as a matter of law, that the

Commission had “acted [in an] arbitrary, capricious, discriminatory, unlawful, [and]

unreasonable [manner] and the decision was not supported by substantial evidence.”

¶11.   We agree with Wallace that the proper standard of review with regard to the

applicability of Section 1-3-76 is de novo. See Miss. Code Ann. § 23-15-69 (Rev. 2007) (“All

cases on appeal shall be heard by the boards of election commissioners de novo . . . . The

                                             7
decisions of the commissioners in all cases shall be final as to questions of fact, but as to

matters of law they may be revised by the circuit courts and the Supreme Court.”) The

Commission’s May 21, 2013, order found that Section 1-3-76 applied and that the signatories

had failed to comply with the statutory requirements for contesting the disqualification of

their purported signatures. The Commission at no point made substantive findings of fact

with regard to the invalidity of the signatures. The Commission made no finding that the

signatures “looked the same,” as it asserted to this Court on appeal. In the absence of specific

findings of fact by the Commission with regard to the validity of signatures on Wallace’s

candidacy petition or some other factual determination, the determination by the Commission

that Section 1-3-76 applies, and the holding by the circuit court reversing the Commission’s

determination, demonstrate a pure question of law, subject to de novo review by this Court.

¶12.   No reported cases guide this Court’s analysis of Section 1-3-76. This Court long has

held that “[w]hen the language used by the legislature is plain and unambiguous . . . and

where the statute conveys a clear and definite meaning . . . the Court will have no occasion

to resort to the rules of statutory interpretation.” Miss. Ethics Comm’n v. Grisham, 957 So.

2d 997, 1001 (Miss. 2007) (quoting Marx v. Broom, 632 So. 2d 1315, 1318 (Miss. 1994)

(citing State v. Heard, 246 Miss. 774, 151 So. 2d 417 (1963))) (emphasis omitted). “Instead,

‘[c]ourts have a duty to give statutes a practical application consistent with their wording,

unless such application is inconsistent with the obvious intent of the legislature.’” Grisham,

957 So. 2d at 1001 (quoting Marx, 632 So. 2d at 1318 (citing Thornhill v. Ford, 213 Miss.

49, 56 So. 2d 23 (1952))) (emphasis omitted). In accordance with these cases, the circuit




                                               8
court divided Section 1-3-76 “into parts, in a way to help understand and decide its true

meaning.”

¶13.   Section 1-3-76 is limited by its language to situations where “ any petition is filed by

qualified electors of a county or municipality . . . .” The circuit court held that “no petition

[was] filed by qualified electors.” Rather, Wallace sought inclusion on the mayoral ballot

as an independent candidate pursuant to Section 23-15-361(1)(a), which requires, “[f]or an

office elected by the qualified electors of a municipality having a population of one thousand

(1,000) or more,” the signatures of “not [fewer] than fifty (50) qualified electors . . . .” We

agree with the circuit court’s exposition of this clause of Section 1-3-76 and find the “petition

filed by qualified electors” contemplated by Section 1-3-76 to be wholly separate and distinct

from the requirements of Section 23-15-361(1)(a).

¶14.   Further, the language of Section 1-3-76 contemplates a scenario in which the qualified

electors are “requesting a vote on matters affecting all or any portion of a county or

municipality.” The circuit court provided the following examples:

       [I]f qualified electors filed a petition seeking to recall an Alderperson, this
       would be a request that would affect a part of a municipality. Or if qualified
       electors filed a petition seeking to recall the Mayor – this would be a request
       that affect[s] all of the municipality. Wallace was not requesting a vote that
       affected the town of Edwards, or any portion of it. He was simply requesting
       to be placed on the ballot.

We agree with the circuit court that Section 1-3-76 does not apply to the present

circumstance. The qualified electors of Edwards are not “requesting a vote” regarding any

matter, even if Wallace’s inclusion on the mayoral ballot potentially could affect the entire

municipality if the people were to elect him mayor. Wallace, pursuant to Section 23-15-



                                               9
361(1)(a), merely is seeking, as an individual citizen, to have his name printed on the

mayoral ballot as an independent candidate, since he was not nominated by a political party.

Section 23-15-361(1)(a) exclusively applies to the present circumstance, and Section 1-3-76

is, by its plain language, inapplicable.

¶15.   The Commission denied Wallace’s candidacy petition on May 21, 2013, finding that

the seven affidavits Wallace had obtained, containing a total of eight signatures, did not

comply with the statutory requirement that the persons whose signatures were disqualified

appear within ten days after the posting of notice. The circuit court reversed the Commission

and held that “[w]ith no evidence to contradict these affidavits, the Court finds that the

Election Commission committed error when it failed to consider the affidavits presented by

Wallace.” Each of the seven affidavits submitted to the Commission, having been subscribed

and sworn before Notary Public Katisha L. Griffith and bearing her seal, contained the

following:

       1.     I am over the age 21 and competent to make the following statement.

       2.     I am a resident citizen and qualified elector of the Town of Edwards,
              Mississippi.

       3.     I was presented a Candidate Petition for Marcus L. Wallace to qualify
              as an independent candidate for the Mayor of the Town of Edwards,
              Mississippi.

       4.     The signature affixed to the Candidate Petition that was disqualified by
              the Town’s Election Commission is my signature.

¶16.   Though this matter was not presented to the circuit court as a motion for summary

judgment, the circuit court noted that Mississippi Rule of Civil Procedure 56 “allows

judgments to be entered with the use of affidavits.” Rule 56(e) provides:


                                             10
       Supporting and opposing affidavits shall be made on personal knowledge, shall
       set forth such facts as may be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matter therein.

The circuit court found that, in the absence of any contradiction of the affidavits, “the

Election Commission was duly bound to credit Wallace with eight (8) signatures. This results

in Wallace[’s] having fifty-one (51) qualified electors signing his Qualifying Statement and

pursuant to [Section] 23-15-361(1)(a), the Election Commission must place Marcus Wallace

on the ballot as an independent candidate for the Mayor of the Town of Edwards.”

¶17.   Indeed, at the hearing in circuit court on Wallace’s Bill of Exceptions, the

Commission continued to argue that Section 1-3-76 applied. The attorney for the

Commission stated that “it’s undisputed that the commissioners were presented with the

affidavits and none of the individuals appeared to address the issues of their affidavits – of

their signatures being disqualified.” He went on to state, “And I think it’s undisputed, Your

Honor, that the commissioners rejected, if that’s the right word, each affidavit. And it’s our

position that each affidavit was rejected based on 1-3-76.” But the attorney for the

Commission could do no more than speculate about the reasons the affidavits were not

accepted. One affidavit contained two signatures. Another was undated. The circuit court

opined, “[s]imply because an affidavit does not include the day it was signed[] does not make

it invalid. . . . Again, the Court is not aware that an affidavit becomes invalid because more

than one person signed it. In fact, the Court sees no reason to invalid [sic] either signature,

since no evidence was presented at the hearing to contradict the affidavits.”

¶18.   The affidavits before the Commission were signed and sworn and bore the seal and

signature of a notary public of this state. The “undated” affidavit was, in fact, partially dated,


                                               11
containing “March, 2013.” Only the numeric date was omitted. In the absence of

contradictory evidence presented to contest those affidavits, we cannot say that the circuit

court erred in its holding that the Commission was bound to credit Wallace with the

signatures appearing on the affidavits. The uncontroverted affidavits in the record raise the

total number of signatures on Wallace’s petition for candidacy to a statutorily sufficient

number and, therefore, qualify Wallace to be placed on the ballot. See Miss. Code Ann. §

23-15-361(1)(a).

                                     CONCLUSION

¶19.   For the foregoing reasons, we affirm the Findings of Fact and Conclusions of Law and

the Final Judgment of the Circuit Court of the Second Judicial District of Hinds County. The

Election Commission of the Town of Edwards, Mississippi, is hereby ordered forthwith to

place the name of Marcus L. Wallace on the ballot as a qualified independent candidate for

the Office of Mayor and to hold a new election in accordance with the Final Judgment of the

Circuit Court of the Second Judicial District of Hinds County.

¶20.   AFFIRMED.

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




                                             12
