Town of Terry v. Smith
| Docket Number: | 2009-EC-01109-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-28-2010 Opinion Author: Pierce, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Election contest - Jurisdiction - Writ of certiorari - Section 11-51-93 - Section 11-51-95 - Notice Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar, Kitchens and Chandler, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Election Contest Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 06-08-2009 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: The plaintiffs-appellants initially sought circuit-court review of the decision of a municipal election commission under the wrong statute. They were time-barred under the statute pleaded in the amended complaint. Case Number: 251-09-428CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Town of Terry, Mississippi, Temporary Municipal Democratic Executive Committee and Cedric Abston, Individually |
HALBERT E. DOCKINS, JR., KIMBERLY CELESTE BANKS |
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| Appellee: | Mary Smith, Individually, and in her Official Capacity as City Clerk for the Town of Terry, Mississippi; and Election Commission of the Town of Terry, Mississippi | JAMES KURT GUTHRIE | ||
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| Topic: | Election contest - Jurisdiction - Writ of certiorari - Section 11-51-93 - Section 11-51-95 - Notice |
| Summary of the Facts: | Cedric Abston, approved by a body calling themselves the “Town of Terry Mississippi Municipal Democratic Executive Committee”, filed his papers to run for mayor of Terry. The municipal election commission met with Abston’s attorney in their presence and found that the Democratic Committee had been improperly formed. Because there was “no committee in place to qualify him” and he had not qualified as an at-large candidate, Abston was, by extension, disqualified. The Democratic Committee and Abston filed a complaint against Mary Smith, the Town Clerk, and the Town Election Commission, alleging that Smith and the Election Commission had wrongly disqualified the Democratic Committee. They sought judicial review of that decision under section 23-15-961, which provides exclusive relief for contesting the qualifications of a candidate in a primary election. The trial court found that the statute pleaded by the plaintiffs was inapplicable, noting statutory procedural differences between municipal elections and primary elections. The trial court advised that Abston and the Democratic Committee might proceed under section 11-51-75, providing for appeal of decisions of boards of supervisors or municipal authorities. The procedural requirements of that statute included filing a bill of exceptions within ten days of the adjournment of the meeting where the action complained of had occurred. The very next day, Abston and the Democratic Committee filed their amended complaint, pleading appeal by bill of exceptions, as recommended by the trial court, along with the required bill of exceptions. The court dismissed the complaint as untimely, and Abston and the Democratic Committee appeal. |
| Summary of Opinion Analysis: | The Democratic Committee and Abston argue on appeal for the first time that the trial court should have treated their initial complaint as a writ of certiorari under section 11-51-93 and section 11-51-95. At the center of Abston and the Democratic Committee’s claims is that the petition for certiorari can be filed within six months of the challenged decision, instead of within ten days. Throughout four days of preliminary hearings, neither Abston nor the Democratic Committee invoked jurisdiction under appeal by certiorari. Failure to allege an error at trial acts as a procedural bar. That notwithstanding, the trial court applied the appropriate procedure for relief and appeal by certiorari is not applicable. Abston and the Democratic Committee pleaded section 11-51-75 in their amended complaint, and they essentially must live with what they pleaded. The trial court was not in error to consider the complaint in the context of the statute under which it was brought. The Democratic Committee and Abston also argue that the dismissal was in error because no evidence was presented to the court on the issue of whether they were given adequate notice of the decision of the Election Commission. Section 11-51-75 does not provide a “notice” requirement. The failure to obtain a bill of exceptions will defeat subject matter jurisdiction in the circuit court regardless of the issues presented. Abston had actual notice of the Election Commission’s decision on March 23, 2009. Since he did not file his bill of exceptions within ten days, as required by the statute, the motion to dismiss was not in error. |
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