                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-EC-00469-SCT

CEOLA JAMES

v.

LATRICE WESTBROOKS


DATE OF JUDGMENT:                          03/21/2018
TRIAL JUDGE:                               HON. STEPHEN B. SIMPSON
COURT FROM WHICH APPEALED:                 WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    CEOLA JAMES (PRO SE)
ATTORNEY FOR APPELLEE:                     WILLIE GRIFFIN
NATURE OF THE CASE:                        CIVIL - ELECTION CONTEST
DISPOSITION:                               ON DIRECT APPEAL: AFFIRMED. ON
                                           CROSS-APPEAL: DISMISSED - 04/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE RANDOLPH, C.J., COLEMAN AND BEAM, JJ.

       RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Former Court of Appeals Judge Ceola James lost the 2016 election for the Court of

Appeals by nearly twenty-two thousand votes. James filed an election contest against the

winner, Judge Latrice Westbrooks.1 James alleged Westbrooks improperly affiliated with

the Democratic Party and improperly aligned herself with a political candidate,

Representative Bennie Thompson of Mississippi’s Second United States Congressional

District. James argued that she received all of the “legal” votes due to Westbrooks’s alleged


       1
       Judge Latrice Westbrooks was sworn in and assumed her present position as Court
of Appeals Judge for District 2, Position 2, on January 3, 2017.
violations of election law and pleaded that she is entitled to hold the judicial post won by

Westbrooks.

¶2.    Westbrooks filed a motion for summary judgment. At the hearing on Westbrooks’s

motion, the trial court found that James had failed to submit proof that Westbrooks had

improperly aligned her campaign with a political candidate or political party and granted

summary judgment in favor of Westbrooks. We affirm.

                       FACTS AND PROCEDURAL HISTORY

¶3.    James and Judge Westbrooks were both candidates for the position of judge on the

Mississippi Court of Appeals, District 2, Position 2, in the November 2016 general election.

Westbrooks defeated James, receiving 92,359 votes (56.74 percent). James received 70,428

votes (43.26 percent). James filed a petition to contest the election in Warren County Circuit

Court against Westbrooks and Representative Thompson, alleging that Westbrooks

improperly aligned her campaign with Thompson’s campaign, contrary to Mississippi Code

Sections 23-15-973 and 23-15-976. Specifically, James alleged that Westbrooks

       1.     Purposely placed a picture of herself and Thompson on her campaign
              card;

       2.     Attended a 2016 Democratic party meeting, at which Thompson
              introduced her as his friend running for the Court of Appeals;

       3.     Appeared with Thompson at the 2016 Domestic Violence Parade in
              Yazoo City, at which Thompson introduced her as a candidate for the
              Court of Appeals;

       4.     Placed her campaign signs with Thompson’s campaign signs;

       5.     Consented to a fundraiser in her honor at which Thompson was listed
              on the invitation as the “special guest”;


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       6.     Consented to a “Sample Official Democratic Election Ballot” that was
              distributed with her permission; and

       7.     Posted, or allowed to be posted, photos of her and Thompson on social
              media during the general election.

James alleged that these activities violated Mississippi Code Sections 23-15-973 and 23-15-

976 and caused voters to align Westbrooks’s campaign with the Democratic Party and with

Representative Thompson’s campaign.

¶4.    Section 23-15-973 provides the following:

       It shall be the duty of the judges of the circuit court to give a reasonable time
       and opportunity to the candidates for the office of judge of the Supreme Court,
       judges of the Court of Appeals, circuit judge and chancellor to address the
       people during court terms. In order to give further and every possible
       emphasis to the fact that the said judicial offices are not political but are to be
       held without favor and with absolute impartiality as to all persons, and because
       of the jurisdiction conferred upon the courts by this chapter, the judges thereof
       should be as far removed as possible from any political affiliations or
       obligations. It shall be unlawful for any candidate for any of the offices
       mentioned in this section to align himself with any candidate or candidates for
       any other office or with any political faction or any political party at any time
       during any primary or general election campaign. Likewise it shall be
       unlawful for any candidate for any other office nominated or to be nominated
       at any primary election, wherein any candidate for any of the judicial offices
       in this section mentioned, is or are to be nominated, to align himself with any
       one or more of the candidates for said offices or to take any part whatever in
       any nomination for any one or more of said judicial offices, except to cast his
       individual vote. Any candidate for any office, whether nominated with or
       without opposition, at any primary wherein a candidate for any one of the
       judicial offices herein mentioned is to be nominated who shall deliberately,
       knowingly and willfully violate the provisions of this section shall forfeit his
       nomination, or if elected at the following general election by virtue of said
       nomination, his election shall be void.

Miss. Code Ann. § 23-15-973 (Rev. 2018). Similarly, Mississippi Code Section 23-15-976

provides that “[a] judicial office is a nonpartisan office and a candidate for election thereto



                                               3
is prohibited from campaigning or qualifying for such an office based on party affiliation.

. . .” Miss. Code Ann. 23-15-976 (Rev. 2018).

¶5.    James requested that the trial court void the 2016 election and declare James to be the

winner under Mississippi Code Section 23-15-973. Alternatively, James requested that the

trial court order a new election and disqualify Westbrooks from running, due to her improper

alignment with Thompson. James also requested attorneys’ fees and damages from

Thompson.2

¶6.    Multiple sample ballots were attached as exhibits to James’s petition. The first two

sample ballots were identical, save for the named county (one from Sunflower County and

the other from Warren County).        Both ballots were entitled “SAMPLE OFFICIAL

DEMOCRATIC ELECTION BALLOT” for the general election on Tuesday, November 8,

2016. Four candidates were named alongside their photos, with the bubble next to their name

darkened. The first candidate listed was Hillary Clinton for United States president. Above

her name was the word “DEMOCRAT.” The second candidate listed was Thompson for the

United States House of Representatives.           Above Thompson’s name was the word

“DEMOCRAT.” The third candidate was Jim Kitchens for Supreme Court. Above Justice

Kitchens’s name read, “NONPARTISAN JUDICIAL ELECTION.” The fourth candidate

listed was Westbrooks for Court of Appeals, which also read, “NONPARTISAN JUDICIAL

ELECTION.” Both sample ballots were “Paid For By Friends of Bennie Thompson.” James

also attached sample ballots from the 2008, 2010, and 2012 general elections that were “Paid

       2
        The trial court docket reflects that Representative Thompson filed a motion to
dismiss with prejudice. He was dismissed voluntarily as a party to this action.

                                              4
For By Friends of Bennie Thompson” and one “Official General Election Ballot” from

Warren County.

¶7.    Westbrooks filed an answer and affirmative defenses to James’s second amended

petition. Westbrooks then filed a motion to dismiss, or in the alternative, a motion for

summary judgment. Westbrooks argued that James failed to state a claim under Mississippi

Code Section 23-15-951, because James had failed to allege that she received a majority of

the “legal” votes cast at the election.

¶8.    Mississippi Code Section 23-15-951 provides,

       Except as otherwise provided by Section 23-15-955 or 23-15-961, a person
       desiring to contest the election of another person returned as elected to any
       office within any county, may, within twenty (20) days after the election, file
       a petition in the office of the clerk of the circuit court of the county, setting
       forth the grounds upon which the election is contested.

       ....

       The court shall, at the first term, cause an issue to be made up and tried by a
       jury, and the verdict of the jury shall find the person having the greatest
       number of legal votes at the election. . . .

Miss. Code Ann. § 23-15-951 (Rev. 2018).

¶9.    James made one claim and one request for relief under this statute: (1) that the Warren

County Circuit Court had jurisdiction to hear her petition; and (2) that the circuit clerk of

Warren County was to serve a copy of the petition on the respondents. The record on appeal

reflects that James did not request a jury trial under this statute or any other statute. Rather,

James requested relief solely under Mississippi Code Section 23-15-973, i.e., that the election

of Westbrooks be declared void.



                                               5
¶10.   Next, Westbrooks argued that James failed to state a claim under Section 23-15-976,

for James failed to present any evidence or to allege any facts that Westbrooks campaigned

or qualified for judicial office based on political party affiliation. Westbrooks also argued

that James failed to state a claim upon which relief could be granted under Section 23-15-

973. Specifically, Westbrooks argued that the use of a sample ballot is authorized by the

commentary to Canon 5A(1) of the Code of Judicial Conduct, which states that “a candidate

does not publicly endorse another candidate for public office by having that candidate’s name

on the same ticket.” Further, Westbrooks argued that any violation of the statute by a non-

judicial candidate was beyond the scope of Section 23-15-973. Although Westbrooks argued

that Sections 23-15-973 and 23-15-976 are unconstitutional, she did not provide notice to the

attorney general as required under Mississippi Rule of Civil Procedure 24(d).

¶11.   James responded to Westbrooks’s motion to dismiss, or in the alternative, summary

judgment. In addition to the sample ballots attached to her second amended petition, James

attached three affidavits. The first was her own affidavit, which stated the following: “I,

Ceola James, do hereby state that the attached ballot is a true and correct copy of the ballot

that was used to work the polls in Drew, MS on election day of November 8, 2016. It was

personally handed to me.” The sample ballot was the same ballot discussed above in

Paragraph 6. The second affidavit was completed by Roosevelt Holly, which reads, “I found

this flyer on my [t]ruck [d]ays before the [e]lection[.] [T]here were [sic] one on ever [sic]

vehicle at Mt. Heroden Church [ ] Vicksburg, MS. I [r]ead it when I got home[.] As [a]n

[a]vid voter I knew it was not [r]ight, so I saved it.” The same sample ballot was attached.



                                              6
The third affidavit, completed by Margaret G. Segrest, also attached the same sample ballot

and read as follows: “The [b]allot [a]ttached to this [a]ffidavit was given to me at the Church

of Greater Grove M.B. Church on Sunday before the election in 2016. This is a true copy of

[the] [b]allot that was given to me.”

¶12.   Additionally, James attached an invitation to a reception for Westbrooks, “Candidate

for Mississippi Court of Appeals,” held on Thursday, October 27, 2016, with Thompson

identified as a “special guest.” The event was hosted by three attorneys and stated that the

minimum contribution for the event was $250, with checks payable to the Latrice

Westbrooks Campaign.

¶13.   James then filed a second response to Westbrooks’s motion, attaching five exhibits:

(1) Westbrooks’s memorandum in support of her motion to dismiss, or in the alternative,

summary judgment; (2) an opinion issued by the Special Committee on Judicial Campaign

Intervention (“Committee”); (3) a public statement issued by the Committee; (4)

Westbrooks’s responses to James’s Request for Admissions; and (5) Westbrooks’s answers

to James’s first set of interrogatories.

¶14.   The Committee opinion addressed a leaflet that had been distributed in a circuit judge

election, which stated that the Tea Party of Mississippi endorsed a circuit judge candidate.

The Committee opined that the candidate had approved the leaflet. The Committee found

that the candidate had aligned himself with a political faction or party in violation of

Mississippi Code Section 23-15-973 and had campaigned for judicial office based on party

affiliation in violation of Section 23-15-976. Likewise, the Committee’s public statement



                                              7
explained that print material circulated by an organization called South Forward IE PAC

supporting a candidate for Hinds County circuit judge had improperly aligned the candidate

for circuit judge with a candidate for another political office. However, the statement did not

describe the print material at issue.

¶15.   A hearing was held on Westbrooks’s motion for summary judgment. According to

James, the hearing occurred on September 8, 2017; however, no transcript of a hearing is in

the record furnished to this Court, nor is a hearing referenced on the trial court’s docket. On

March 21, 2018, Special Judge Stephen Simpson granted Westbrooks’s motion for summary

judgment and dismissed James’s petition with prejudice. In his findings of fact and

conclusions of law, Judge Simpson found, inter alia, that

       James’ response and memorandum brief constitute nothing more than denials.
       James offered no evidence that this Court may examine and conclude that a
       genuine issue of mat[erial] fact exists to warrant a trial. Further, although she
       is a former judge and practicing attorney, this Court gave James the benefit of
       the doubt normally reserved for pro se litigants. During the hearing, this Court
       specifically questioned James to determine whether facts exist to support her
       claims. Based on her responses to the Court’s questions, the Court finds that
       there are no facts to support James’ claims of improper alignment in violation
       of Miss. Code Ann. § 23-15-973 or party affiliation in violation of Miss. Code
       Ann. § 23-15-976.

¶16.   James filed a notice of appeal. Westbrooks also filed a notice of cross-appeal, stating

the trial court erred in (1) denying her motion to dismiss and for imposition of other

sanctions; and (2) declining to consider that part of the motion for summary judgment

challenging the constitutionality of Mississippi Code Sections 23-15-973 and 23-15-976.

This Court granted Westbrooks’s motion to file an out-of-time brief. Westbrooks’s brief

does not address her first issue. Therefore, we consider the issue abandoned. As to

                                              8
Westbrooks’s second claim, the attorney general was not provided a copy of her brief as

required by Mississippi Rule of Appellate Procedure 44. The issue is therefore procedurally

barred. Miss. Dep’t of Revenue v. AT&T Corp., 202 So. 3d 1207, 1209 n.1 (Miss. 2016)

(“Failure to serve a copy of the appellate brief on the Attorney General of the State of

Mississippi results in application of a procedural bar.” (citing Virk v. Miss. Dep’t of

Revenue, 133 So. 3d 809, 814-15 (Miss. 2014))). Further, “[t]he constitutionality of a statute

will not be determined unless absolutely necessary to determine the merits of the litigation

in which the constitutional issue has been presented.” In re Adoption of D.D.H., No. 2016-

CA-01530-SCT, 2018 WL 372381, at *2 (Miss. Jan. 11, 2018) (quoting Roberts v. Miss.

State Highway Comm’n, 309 So. 2d 156, 160 (Miss. 1975)). An examination of the

constitutionality of the statutes is not “absolutely necessary” to resolve this appeal.

                                           ISSUE

¶17.   The sole issue before the Court is whether the trial court erred in granting

Westbrooks’s motion for summary judgment.

                                STANDARD OF REVIEW

¶18.   “Summary judgment is an appropriate procedural device capable of being utilized in

election disputes.” Rush v. Ivy, 853 So. 2d 1226, 1229 (Miss. 2003) (citing Lewis v.

Griffith, 664 So. 2d 177, 187-88 (Miss. 1995)). “This Court applies a de novo standard of

review on appeal from a grant of summary judgment by the trial court.” Rush, 853 So. 2d

at 1229 (citing Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228, 232 (Miss. 2001)).

                                       DISCUSSION



                                              9
¶19.   On appeal, James fails to cite a single election contest case in her briefs. She cites

Mississippi Code Sections 23-15-973 and 23-15-976. Neither statute has been examined by

this Court. James also cites a judgment from the United States District Court for the

Southern District of Mississippi, finding Section 23-15-976 to be unconstitutional, save for

the first sentence of the statute. Miss. Republican Party State Exec. Comm. v. Musgrove,

Civ. No. 3:02CV1578WS (S.D. Miss. Oct. 21, 2002).3 James argues that the evidence

produced to the trial court created a genuine issue of material fact to defeat Westbrooks’s

motion for summary judgment.

¶20.   James failed to submit proof to support her allegations that: (1) Westbrooks included

a photo of her and Thompson on her campaign card;4 (2) Westbrooks attended a 2016

Democratic party meeting,5 at which Thompson introduced her as his friend running for the

Court of Appeals; (3) Westbrooks appeared with Thompson at the 2016 Domestic Violence

Parade in Yazoo City, at which Thompson introduced her as a candidate for the Court of



       3
         James cited the Musgrove judgment in response to Westbrooks’s argument that the
statutes at issue are unconstitutional. Musgrove holds that Section 23-15-976 is
unconstitutional to the extent that it prohibits political parties from endorsing judicial
candidates. In this case, James does not allege that a political party improperly endorsed a
judicial candidate. Thus, Musgrove is inapplicable.
       4
         James submitted two photos of Westbrooks and Thompson to the trial court, and
they are a part of the record. However, James did not submit the campaign card about which
she complains.
       5
         Even if James sufficiently had proved Westbrooks’s attendance, the commentary
to Canon 5C(1) of the Mississippi Code of Judicial Conduct provides that “[a]ttending or
speaking at a political party gathering in the judge’s own behalf while a candidate does not
constitute alignments or affiliation with the party sponsoring the gathering.” Miss. Code of
Jud. Conduct, Canon 5C(1) cmt.

                                             10
Appeals; (4) Westbrooks placed her campaign signs with Thompson’s campaign signs; and

(5) Westbrooks posted, or allowed to be posted, photos of her and Thompson on social media

during the general election.6

       When a motion for summary judgment is made and supported as provided in
       this rule, an adverse party may not rest upon the mere allegations or denials of
       his pleadings, but his response, by affidavits or as otherwise provided in this
       rule, must set forth specific facts showing that there is a genuine issue for trial.
       If he does not so respond, summary judgment, if appropriate, shall be entered
       against him.

Massey v. Tingle, 867 So. 2d 235, 238 (Miss. 2004) (quoting Miss. R. Civ. P. 56(e)).

Because James failed to submit proof to support the above allegations, the trial court did not

err in granting summary judgment on those grounds. We discuss James’s remaining claims

individually.

       I.       Westbrooks consented to a “Sample Official Democratic Election Ballot” that
                was distributed with her permission

¶21.   The bulk of James’s challenge concerns the sample ballots that were distributed by

“Friends of Bennie Thompson.” James submitted three affidavits, swearing that the sample

ballots had been personally received on or near election day. James argues that, although the

commentary to Canon 5A(1) of the Mississippi Code of Judicial Conduct states that “[a]

candidate does not publicly endorse another candidate for public office by having that

candidate’s name on the same ticket,” it also states that Mississippi Code Section 23-15-973

“imposes restrictions on candidates and political organizations to assure the non-partisan




       6
           James did not submit a social-media posting to the trial court.

                                               11
quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit

Court, and County Court justices and judges.”

¶22.   The “Sample Official Democratic Election” ballots that James produced to the trial

court clearly and emphatically identify the document as a “Democratic” ballot, which

included names and photos of select judicial candidates with the bubble next to their name

darkened. However, James has not offered proof that Westbrooks was responsible for

printing and circulating the material.

¶23.   According to the proof submitted, the “Friends of Bennie Thompson” created and

distributed these sample democratic ballots—not Westbrooks. Indeed, in Westbrooks’s

responses to James’s first set of interrogatories, Westbrooks stated that she “ha[d] no

personal knowledge or information of any illegal ballots being distributed within the counties

of the second district for the Mississippi Court of Appeals.” Westbrooks refuted James’s

claim that she requested or instructed the “Friends of Bennie Thompson” to place her name

on the sample democratic ballots of which James complains. The only evidence before the

trial court was the sample democratic ballots, which indicate that the group responsible for

the ballots was “Friends of Bennie Thompson.”

¶24.   The facts James has presented are distinguishable from those in the opinion issued by

the Special Committee on Judicial Campaign Intervention, in which the Committee found

that a leaflet had been approved by a judicial candidate as printed. Here, James failed to

produce any evidence that Westbrooks previewed and approved the “Sample Official

Democratic Election Ballot.” We therefore discern no violation by Westbrooks.



                                             12
       II.    Westbrooks consented to a fundraiser in her honor, and Thompson was listed
              on the invitation as the “special guest”

¶25.   The only evidence presented to the trial court in support of this allegation was a copy

of the invitation itself. James did not present any evidence that Thompson’s participation in

the event “aligned” Westbrooks’s campaign with Thompson’s campaign. Align, Webster’s

II New College Dictionary (“[t]o ally (e.g., oneself) with one side of a dispute or cause . .

. .”) Further, James did not present any evidence that Thompson’s appearance as a guest at

this event improperly affiliated Westbrooks with any political party. No mention of any

political party appears on the invitation.

¶26.   When determining whether a new election is the appropriate remedy, as requested by

James in this case, this Court has stated,

       The key in deciding whether an act not in strict compliance with the statutory
       election procedures renders that election void is whether the act is such a total
       departure from the fundamental provisions of the statute as to destroy the
       integrity of the election and make the will of the qualified electors impossible
       to ascertain.

Harpole v. Kemper Cty. Democratic Exec. Comm., 908 So. 2d 129, 137 (Miss. 2005)

(quoting Riley v. Clayton, 441 So. 2d 1322, 1328 (Miss. 1983)). See also Ulmer v. Currie,

147 So. 2d 286 (Miss. 1962); Sinclair v. Fortenberry, 56 So. 2d 697 (Miss. 1952); and

Gregory v. Sanders, 15 So. 2d 432 (Miss. 1943). “When reviewing election contests, our

courts regard the imposition of a new election as a last resort and seek to avoid exacting it

as a remedy, if at all possible.” Harpole, 908 So. 2d at 137. “Our precedent is quite clear

in this regard, and the key consideration in making this decision is whether there is such a




                                              13
radical departure from our election laws so as to require a special election or that alleged

illegal votes are attended by fraud or willful violations of election law.” Id.

¶27.   James has failed to demonstrate a “radical departure” from election law such that the

will of the electors is “impossible to ascertain.” Id. Indeed, James lost the election to

Westbrooks by nearly twenty-two thousand votes, and, as the trial court noted, James did not

identify a single illegal ballot from the election.

                                       CONCLUSION

¶28.   Based on the lack of proof presented to the trial court, we find that the trial court

correctly granted summary judgment in favor of Westbrooks.

¶29.   ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED.

    KITCHENS, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.
KING, P.J., MAXWELL, ISHEE AND GRIFFIS, JJ., NOT PARTICIPATING.




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