DATE OF JUDGMENT: 06/27/2013
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT
COURT, TRIAL JUDGE: HON. HENRY L. LACKEY.
TRIAL COURT ATTORNEYS: WILLIE JAMES PERKINS, SR., JAMES D. BELL, PAUL CALEB KOONCE.
FOR APPELLANT: ERIC CHARLES HAWKINS, WILLIE JAMES PERKINS, SR.
FOR APPELLEE: JAMES D. BELL, PAUL CALEB KOONCE.
KITCHENS, JUSTICE, FOR THE COURT. WALLER, C.J., RANDOLPH, P.J., CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J.
NATURE OF THE CASE: CIVIL - ELECTION CONTEST
¶1. Following the May 7, 2013, Democratic primary for the Ward 5 seat on the Greenwood City Council, the Greenwood Municipal Democratic Executive Committee certified Dorothy Ann Glenn as the
winner and thus the Democratic nominee for the Ward 5 seat on the City Council. Andrew Powell, the runner-up for the Democratic nomination for the Ward 5 seat, challenged the election results, contending that Glenn was not a resident of Ward 5 at the time of the election and that she consequently was ineligible to run for that office. Powell sought a special primary runoff election, without Glenn's name on the ballot. The Circuit Court of Leflore County, Special Election Tribunal, found that Glenn was not a resident of Ward 5, held that she was not qualified to hold the position of Greenwood City Council Member for Ward 5, set aside the results of the primary election of May 7, 2013, and ordered a special primary runoff election without Glenn's name on the ballot. Finding no error below, we affirm in part. We reverse in part and vacate the order of the circuit court for a special primary runoff election.
FACTS AND PROCEEDINGS BELOW
¶2. In the May 7, 2013, Democratic primary, Glenn garnered 55.51% of the votes cast; the runner-up, Andrew Powell, garnered 39.73% of the votes cast; and Norman Smith, a third contender, garnered 4.56% of the votes cast. Three days after the primary, on May 10, 2013, Powell filed a " Petition for Certification of the True Results of the Democratic Primary Election for City Council Member, Ward 5," pursuant to Mississippi Code Section 23-15-921 (Rev. 2007), with the Greenwood Municipal Democratic Executive Committee (" Executive Committee" ). Powell stated that " Glenn is not currently a resident of the 5th ward of Greenwood, M[ississippi] and was not a resident at the time she qualified to run for office, and is therefore ineligible to run for and/or represent the Democratic Party in the general election . . . ." Attached to Powell's petition were affidavits of relatives and acquaintances of Glenn attesting that Glenn did not reside in Ward 5. According to Powell, Glenn erroneously claimed residence at 116 Longino Street in Greenwood in order to qualify to run for the Ward 5 seat when, in actuality, her residence was 301 East Percy Street in Greenwood, a dwelling not situated within Ward 5. Powell requested that the Executive Committee " declare that the true result of the May 7, 2013 primary is that there are two eligible candidates, namely Andrew Powell and Norman Smith, that shall be in a run-off primary election."
¶3. Having received no response from the Executive Committee as of May 16, 2013, Powell filed a " Petition for Judicial Review of the Democratic Primary Results
for the Election of the Position of City Councilman, Ward 5" in the Circuit Court of Leflore County. That same day, this Court appointed a special judge to preside over the matter. Glenn responded with a Motion to Dismiss, asserting that the court lacked subject matter and personal jurisdiction and that Powell had failed to state a claim upon which relief could be granted. Alternatively, Glenn asserted an entitlement to summary judgment " on the ground that there is no genuine issue of material fact."
¶4. A bench trial was conducted on May 24, 2013. Persons whose affidavits were attached to Powell's Petition for Certification testified at trial that Glenn did not reside at the 116 Longino Street address, but that she actually resided at 301 East Percy Street, a house not situated within Ward 5. Glenn did testify on her own behalf, denying that she falsely claimed residency at 116 Longino Street in order to meet the residency requirement. Nevertheless, Glenn testified that she had multiple residences, and that she had resided for a time at a business she owned at 601 Broad Street, an address situated in Ward 7. A Registered Voters Report was admitted into evidence showing an address for Glenn (also known as Dorothy Ann Nichols) at 514 East McLaurin Street. But another Voters Report demonstrated that Willie Wayne Gatewood lived at that same address. Gatewood testified that Glenn had never lived at 514 East McLaurin Street, but that she had asked his permission to use that address as her mailing address.
¶5. The trial court filed Findings of Fact and Conclusions of Law on June 28, 2013, finding that " Glenn has no credibility as a witness" and that " her testimony and the evidence received proves that Ms. Glenn has a propensity to use false addresses to attempt to meet the requirement for candidacy for public office." Finding further that " [t]he overwhelming preponderance of the evidence received during the trial convinced the Court that Dorothy Ann Glenn is not currently a resident of the 5th Ward of Greenwood, Mississippi and was not a resident at the time that she applied to run for office," the trial court held that Glenn had been ineligible to represent the Democratic Party in the general election for the office of Greenwood Municipal City Council Member, Ward 5. As a result of Glenn's disqualification to run as the Democratic nominee, the trial court held further that " the result of the general election for that position is set aside and held for naught," and that if Glenn " has assumed office by the time this order is made final, then she is by Order of this Court removed from office." The trial court ordered a special runoff election to take place " on the first Tuesday after two weeks after the entry of this Order."
¶6. Aggrieved, Glenn filed on June 30, 2013, a Petition for Interlocutory Appeal in this Court. A panel of this Court granted Glenn's petition and stayed execution of the judgment on July 2, 2013. Glenn raises two issues for interlocutory review:
1. Whether the lower court had jurisdiction to decide a contest of qualifications of candidates for primary election under Miss. Code Ann. Section 23-15-927 as opposed to Section 23-15-961.
2. Whether the lower court erred in ordering a special primary runoff election within two weeks between the two losing candidates.
We address each assignment of error in turn.
¶7. " In an election contest, the standard of review for questions of law is de novo." Sumner v. City of Como ...