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VELVELYN B. FOSTER v. ALICE HARDEN

MAY 11, 1988

VELVELYN B. FOSTER
v.
ALICE HARDEN, EARL S. BANKS, AND THE HINDS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE



BEFORE ROY NOBLE LEE, C.J., ROBERTSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

The present case is an appeal from an order of the Circuit Court of Hinds County, dismissing Velvelyn B. Foster's election contest petition on the basis that the court lacked subject matter jurisdiction. From this adverse decision, Foster appeals, making one (1) assignment of error.

FACTS

 Velvelyn B. Foster properly qualified as a Democratic candidate seeking election to the Mississippi Senate from District 28, Hinds County, Mississippi. As a result of the primary election held on August 4, 1987, the Hinds County Democratic Executive Committee certified Earl S. Banks and Alice Harden to be the candidates receiving sufficient votes to be candidates in the run-off election then to be conducted on August 25, 1987.

 On August 24, 1987, Velvelyn B. Foster filed a sworn petition to contest the aforementioned primary election of August 4, 1987, with the secretary of the Hinds County Democratic Executive Committee pursuant to Miss. Code Ann. 23-15-921 (Supp. 1987). In her petition, Foster alleged that Earl S. Banks and Alice Harden fraudulently qualified to seek election to the Mississippi Senate from District 28, in that said candidates were not actual residents of District 28 for two (2) years before the election as is required by Article 4, 42 of the Mississippi Constitution. As a result of the August 25, 1987 run-off election, the Hinds County Democratic Executive Committee certified Alice Harden to be the candidate receiving sufficient votes for her to be the Democratic nominee in the general election then to be held on November 3, 1987. On October 13, 1987, the Executive Committee unanimously denied Foster's election contest petition and declared Harden to be the Democratic nominee from Senate District 28.

 On October 21, 1987, Foster filed a petition for judicial review of the August 4th and August 25th, 1987 primary elections with the Circuit Court of Hinds County pursuant to Miss. Code Ann. 23-15-927 (Supp. 1987). In said petition, Foster again made the allegations concerning Banks' and Harden's failed residency qualifications as was made to the Executive Committee. While this matter was pending, Harden, being the only candidate in the November 3, 1987 general election for Senate District 28, was certified to be the winner.

 A special circuit judge was appointed to preside over Foster's civil action. Harden filed a motion to dismiss the election contest petition, and all respondents joined in her

 motion. After hearing arguments of counsel, and reviewing the memoranda of law submitted by the parties, the lower court, by an order entered on December 31, 1987, granted Harden's motion and dismissed the petition for lack of subject matter jurisdiction. It is from this adverse determination that Foster appeals. We reverse and remand.

 I. IS A SPECIAL TRIBUNAL CONVENED PURSUANT TO MISSISSIPPI CODE ANNOTATED 23-15-927 AND 23-15-929 (SUPP. 1987) VESTED WITH SUBJECT MATTER JURISDICTION OF AN ELECTION CONTEST WHEN IT IS ALLEGED WITHIN THE PETITION FOR JUDICIAL REVIEW THAT THE WINNING CANDIDATES FRAUDULENTLY QUALIFIED AS DEMOCRATIC CANDIDATES FOR HINDS COUNTY SENATE DISTRICT 28, WHEN SAID CANDIDATES HAD NOT MET THE RESIDENCY REQUIREMENT STATED IN ARTICLE 4, 42 OF THE MISSISSIPPI CONSTITUTION?

 Foster's election contest petition to the Circuit Court of Hinds County was brought pursuant to Miss. Code Ann. 23-15-927 (Supp. 1987) which provides in relevant part:

 When and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said 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, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, or if more than one county to be involved then in one (1) of said counties, a sworn copy of his said protest or complaint, together with a sworn petition, setting forth with particularity wherein the executive committee has wrongfully failed to act or to fully and promptly investigate or has wrongfully denied the relief prayed by said contest, with a prayer for a judicial review thereof.

 As previously stated, the lower court dismissed the petition on the basis that it lacked subject matter jurisdiction.

 Very recently, in Gadd v. Thompson, 517 So.2d 576 (Miss. December 16, 1987), this Court reviewed the decision of a special tribunal convened to hear an election contest in which the residency qualifications of the winning candidate were in issue. The lower court determined in Gadd that the

 winning candidate had not complied with the two (2) year residency requirement under Article 4, 42 of the Mississippi Constitution and ordered a new election. In affirming the decision of the lower court, this Court determined that residency qualifications of a candidate are proper subject matter for a special tribunal in an election contest hearing. Consequently, we overruled, sub silentio, McKenzie v. Thompson, 186 Miss. 524, 191 So. 487 (1939) and those other cases holding to the contrary. As such, in the present case, it was error for the lower court to dismiss Foster's election contest petition pursuant to 23-15-929 which stated as its basis the failure of Harden and Banks to comply with the two (2) year residency ...


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