The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 10/20/1997
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - ELECTION CONTEST
DISPOSITION: AFFIRMED - 3/18/99
¶1. Fred Esco, Jr., an unsuccessful contender for the Democratic nomination for the City of Canton's 1997 mayoral race, challenges the dismissal of his election contest petition by the Circuit Court of Madison County on October 20, 1997. We find that the Special Judge ruled correctly in finding that an attorney who is "of counsel" to the firm in which the petitioner's attorney is a partner is not eligible to make the certification of a practicing attorney that an independent assessment of the claim has been made, as required by Miss. Code Ann. § 23-15-927 (1986) as a jurisdictional prerequisite to for the filing of a petition contesting a primary election. Accordingly, we affirm the dismissal of Esco's petition by the court below.
¶2. Fred Esco, Jr. ran unsuccessfully in the May 6, 1997 Democratic Primary Election in the City of Canton seeking his party's nomination for mayor. Alice Scott received a majority of the votes cast and was declared the party's nominee. Alleging irregularities in the balloting, Esco filed a petition with the Municipal Democratic Executive Committee of the City of Canton, Mississippi on May 26, 1997.
¶3. On May 3, 1997, the Committee met and considered Esco's petition. After hearing several witnesses and considering the documentation entered into evidence, the Committee found that despite a number of errors, there was no direct evidence either of fraud or willful violation of election procedures.
¶4. Alleging that the Executive Committee "has wrongfully failed to act or to fully and properly and properly investigate and has wrongfully denied the relief prayed by said contestant," Esco, through his attorney Samuel L. Begley, a partner in the law firm of Maxey, Wann & Begley, filed a his Sworn Petition Contesting Election in the Circuit Court of Madison County on June 2, 1997. The petition was accompanied by three certificates of practicing attorney. One was signed by John F. Hawkins, an attorney in the firm of Maxey, Wann & Begley. Another was signed by Peyton D. Prospere, listed on the Maxey, Wann & Begley letterhead as "of counsel." The third was signed by James A. Bobo, who was not affiliated with the firm.
¶5. In her response, filed July 2, 1997, Alice Scott asserted as her affirmative defenses that the circuit court did not have jurisdiction to hear the case because of Esco's alleged failures to meet the requirements of the Election Code, including that he did not show or state through exhibits that he, and not Scott, should have been the nominee for mayor; that his petition was pled in general and not specific terms with regard to election irregularities or fraud; and that in his petition to the Democratic Executive Committee, he did not show the effect sustaining his challenge would have had on the result of the Executive Committee's vote. Esco then filed his first amended petition on August 12, 1997 to add as defendants the two other candidates in the primary race, Goldman F. Jones, Jr. and Bernadette Russell. Scott's response, filed on September 3, 1997, included a motion to dismiss, based on her previously stated affirmative defenses.
¶6. A motions hearing was held on September 4, 1997. As Esco asserted in his September 10, 1997 Response to Respondent Alice Scott's Motion to Dismiss, Scott added another basis for dismissal at that time: that two of the certificates of practicing attorneys were not in compliance with the Election Code because John Hawkins was a member of Esco's attorney's law firm and Peyton Prospere was "of counsel" to the firm.
¶7. In its September 19, 1997 opinion, the Special Judge found that neither Prospere nor Hawkins was eligible to make a certification pursuant to Miss. Code Ann. § 23-15-927. Thus, citing Pearson v. Jordan, 186 Miss. 789, 192 So. 39 (1939), he found that the circuit court ...