                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2015-EC-01387-SCT

JAMES K. BASIL

v.

ROGER BROWNING, UNION COUNTY
ELECTION COMMISSION AND PHYLLIS
STANFORD, CIRCUIT CLERK


DATE OF JUDGMENT:                        09/15/2015
TRIAL JUDGE:                             HON. JOHN ANDREW GREGORY
TRIAL COURT ATTORNEYS:                   DAVID D. O’DONNELL
                                         THAD A. MUELLER
                                         JAMES D. BELL
                                         P. CALEB KOONCE
COURT FROM WHICH APPEALED:               UNION COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 JAMES D. BELL
                                         P. CALEB KOONCE
ATTORNEYS FOR APPELLEES:                 DAVID D. O’DONNELL
                                         THAD J. MUELLER
NATURE OF THE CASE:                      CIVIL - ELECTION CONTEST
DISPOSITION:                             REVERSED AND RENDERED - 10/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   The Union County Election Commission disqualified Roger Browning from running

for Union County Superintendent of Education, finding that he was not a qualified elector

of the Union County School District. The Union County Circuit Court overturned the

Commission’s decision and issued an injunction requiring Browning’s name to be placed on
the ballot for the general election.    James K. Basil, the incumbent Union County

Superintendent of Education and Democratic Party nominee in the upcoming election,

appeals the circuit court’s decision, arguing that Browning does not meet the residency

requirement to serve as county superintendent. We hold that Browning, a resident of the

New Albany Municipal Separate School District, is not eligible to run for Union County

Superintendent of Education. Accordingly, we reverse the judgment of the circuit court and

render judgment in Basil’s favor.

                        FACTS & PROCEDURAL HISTORY

¶2.    Union County contains two school districts: Union County School District, and New

Albany Municipal Separate School District. Roger Browning resides in Union County,

outside the limits of the City of New Albany but within the New Albany Municipal Separate

School District. In January 2015, Browning submitted the necessary paperwork to qualify

as a Republican Party candidate for Union County Superintendent of Education. The Union

County Republican Executive Committee certified Browning as a qualified candidate. The

Republican primary election was held on August 4, 2015, and Browning was declared the

Republican Party nominee after running unopposed.

¶3.    On August 18, 2015, the Union County Election Commission met to discuss

Browning’s qualifications to be placed on the ballot for the general election. Browning and

Clay Hardy, the Chairman of the Union County Republican Executive Committee, attended

this meeting. At the conclusion of the meeting, the Election Commission voted unanimously

to disqualify Browning “because he does not live in the Union County school district.” The



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Election Commission’s decision was based on a settlement judgment entered in Weeden v.

Reddy, Civil Action No. 3:02CV165-M-A (N.D. Miss. February 20, 2003), in which a United

States magistrate judge had enjoined residents of the New Albany Municipal Separate School

District from being candidates for the position of Union County Superintendent of Education.

¶4.    On September 1, 2015, Browning filed a Petition to Declare Roger Browning a Duly

Qualified Republican Candidate for Union County Superintendent of Education and

Permanent Injunctive Relief with the Union County Circuit Court. James Basil, the

incumbent Union County Superintendent of Education and Democratic Party nominee for

the upcoming election, filed a motion to intervene and a motion to dismiss Browning’s

petition. The trial court held a hearing on the parties’ respective motions on September 10,

2015. Five days later, the trial court entered an order granting Basil’s motion to intervene,

denying Basil’s motion to dismiss, and granting an injunction requiring the Union County

Election Commission to place Browning’s name on the ballot for the general election.

¶5.    Basil then filed a motion for reconsideration in the trial court and a notice of appeal

to this Court. Basil also filed a motion in this Court requesting a stay of the circuit court’s

ruling and an expedited briefing schedule on appeal. This Court denied Basil’s request for

a stay but granted his request for an expedited briefing schedule. We then issued an order

requiring Basil to show cause why his appeal should not be delayed until the circuit court

court ruled on his motion to reconsider. Two days later, the circuit court denied Basil’s

motion to reconsider, and this Court issued an order allowing the appeal to proceed.




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¶6.    On appeal, Basil argues that the circuit court erred in finding that Browning met the

residency requirement to qualify as a candidate for Union County Superintendent of

Education. He also argues that Browning failed to follow the proper procedure for appealing

the Election Commission’s decision disqualifying him as a candidate.

                                STANDARD OF REVIEW

¶7.    “In an election contest, the standard of review for questions of law is de novo.”

Garner v. Mississippi Democratic Exec. Comm., 956 So. 2d 906, 909 (Miss. 2007) (citations

omitted). On the other hand, the factual findings of the trial court are reviewed for manifest

error, “i.e., whether the findings were the product of prejudice, bias, or fraud, or manifestly

against the weight of the credible evidence.” Id. (citing Boyd v. Tishomingo Cnty.

Democratic Exec. Comm., 912 So. 2d 124, 128 (Miss. 2005)).

                                       DISCUSSION

       I.     Whether Browning failed to follow the proper procedure for
              challenging the Union County Election Commission’s
              disqualification decision.

¶8.    We must first dispose of Basil’s procedural arguments before turning to the

substantive issue before the Court. As previously stated, Browning challenged the Election

Commission’s decision to disqualify him by filing a petition for injunctive relief in the Union

County Circuit Court. Basil argues that Section 23-15-963 of the Mississippi Code provides

the exclusive procedure for challenging the decision of election officials and that Browning

failed to comply with this statute’s requirements. Specifically, Basil argues that Browning

failed to file a petition with the Election Commission challenging their disqualification



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decision prior to seeking judicial review of the Commission’s decision, in violation of

Section 23-15-963(1), and that he failed to file a cost bond with the necessary sureties when

he filed his petition in the trial court, in violation of Section 23-15-963(6).

¶9.    A review of the plain language of Section 23-15-963 demonstrates that Basil’s

arguments are without merit. Section 23-15-963 sets forth “the sole and only manner in

which the qualifications of a candidate seeking public office who qualified pursuant to the

provisions of Section[] 23-15-359 . . . may be challenged prior to the time of his election.”

Miss. Code Ann. § 23-15-963(9) (Rev. 2015) (emphasis added). The procedures listed in this

statute may be utilized only to “contest the qualifications of another person who has qualified

. . . as a candidate for any office at a general election[.]” Miss. Code Ann. § 23-15-963(1)

(Rev. 2015) (emphasis added). At the time he filed his petition in the circuit court, Browning

was not a qualified candidate for public office at a general election, as the Election

Commission had disqualified him.           Moreover, Browning was not contesting the

qualifications of another person; rather, he was challenging his own disqualification.

Accordingly, the provisions of Section 23-15-963 do not apply to the instant case. We now

turn to Basil’s substantive arguments.

       II.    Whether Mississippi law allows a qualified elector of New Albany
              Municipal Separate School District to seek election to the position
              of Union County School District Superintendent of Education.

¶10.   Mississippi law requires each county to have a county superintendent of education,

who “shall be the director of all schools in the county school district which are outside the

municipal separate school districts.” Miss. Code Ann. § 37-5-61(1), (3) (Rev. 2014)



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(emphasis added). “No person shall be eligible to the office of superintendent of schools

unless such person shall hold a valid administrator’s license issued by the State Department

of Education and shall have had not less than four (4) years of classroom or administrative

experience.” Miss. Code Ann. § 37-9-13 (Rev. 2014). It is undisputed that Browning

possesses the above qualifications. The only question before this Court is whether Browning,

a resident of the New Albany Municipal Separate School District, may nevertheless run for

Union County Superintendent of Education.

¶11.   Section 37-5-71 of the Mississippi Code provides the residency requirements for

candidates for the position of county superintendent of education in specific counties. In

some counties, “[t]he qualified electors residing within the municipal separate school districts

shall not participate in the election of the county superintendent of education.” Miss. Code

Ann. § 37-5-71(3) (Rev. 2014). In other counties, however, “[a]ll qualified electors residing

within any municipal separate or special municipal separate school district shall not vote in

the election for the county superintendent of education” but “the county superintendent of

education may be a resident of a municipal separate school district or special municipal

separate school district.” Miss. Code Ann. § 37-5-71(2) (Rev. 2014). Section 37-5-71 does

not cover every county in the state, however, and the parties in this case agree that Union

County is not described anywhere in the statute. Thus, we must determine the general rule

governing the residency requirement for county superintendent of education in the absence

of a specific statutory directive.




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¶12.   The Mississippi Election Code, codified in Title 23, Chapter 15 of the Mississippi

Code, provides a general residency requirement for all elected offices in the state. Section

23-15-359 imposes upon the appropriate election officials the duty to “determine whether

each candidate is a qualified elector of the state, state district, county or county district they

seek to serve, and whether each candidate meets all other qualifications to hold the office he

is seeking[.]” Miss. Code Ann. § 23-15-359(8) (Rev. 2015) (emphasis added). Here, it is

undisputed that Browning is a resident of Union County. However, Union County and the

Union County School District are not one and the same. The Union County Superintendent

of Education serves as the director of all schools within the Union County School District

which are outside the New Albany Municipal Separate School District. See Miss. Code Ann.

§ 37-5-61(3) (Rev. 2013). Browning, a resident of the New Albany Municipal Separate

School District, did not present any evidence to the circuit court indicating that he is a

qualified elector of the Union County School District, the “county district [he] seek[s] to

serve.” Miss. Code Ann. § 23-15-359(8) (Rev. 2015). Accordingly, we hold that the Union

County Election Commission correctly disqualified Browning as a candidate for county

superintendent,1 and the circuit court erred by requiring Browning’s name to be placed on

the ballot for the general election.

¶13.   We recognize that the Attorney General has issued some opinions which conflict with

the holding of this Court. It is well-settled that Attorney General’s Opinions are not binding



       1
         We note that the injunction imposed in Weeden, on which the Election Commission
relied to disqualify Browning, is consistent with our opinion in the instant case and the
statutes cited herein.

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on this Court and serve only as persuasive authority in appropriate cases. See Dupree v.

Carroll, 967 So. 2d 27, 31 (Miss. 2007).       But the Attorney General Opinions cited by

Browning are either incorrect or distinguishable from the instant case. In Bridgeforth, 2011

WL 533613, at *1 (Miss. A.G. Jan. 14, 2011), the Attorney General incorrectly applied

Section 37-5-71(2) to Yazoo County and opined that a resident of the Yazoo City Municipal

School District could qualify as a candidate for Yazoo County Superintendent of Education.

The Bridgeforth opinion was incorrect, because Yazoo County, like Union County, is not

identified in any of the provisions of Section 37-5-71. Thus, the residency requirement for

the office of Yazoo County Superintendent is governed by Section 23-15-359(8), not Section

37-5-71. In Austin, 2003 WL 21003287, at *1 (Miss. A.G. March 7, 2003), the Attorney

General opined that a resident of the Pontotoc Municipal Separate School District could run

for the office of Pontotoc County Superintendent of Education. But Pontotoc County is

specifically described in Section 37-5-71(4)(c), so Austin is distinguishable from the instant

case. For counties not identified in Section 37-5-71(2) of the Mississippi Code, qualified

electors of a municipal separate school district or special municipal separate school district

are not eligible to run for the office of county superintendent of education.

                                      CONCLUSION

¶14.   For the foregoing reasons, we reverse the judgment of the Union County Circuit Court

and render judgment here that Roger Browning is not qualified by residency to be a candidate

for Union County Superintendent of Education and that any votes cast for Browning at the

November 3, 2015, general election shall not be counted. Given the impending election date,



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no motion for rehearing will be allowed in this case, and the Clerk of this Court is directed

to issue the mandate in this case immediately.

¶15.   REVERSED AND RENDERED.

     DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING
AND COLEMAN, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.




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