Rayner v. Barbour
| Docket Number: | 2010-EC-01682-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-27-2010 Opinion Author: Chandler, J. Holding: On Direct Appeal: Affirmed. On Cross-Appeal: Affirmed. |
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| Additional Case Information: |
Topic: Election contest - Judicial vacancy - Postponement of election - Section 9-1-103 - Section 23-15-849(1) - Write-in election - Section 23-15-365 - Assessment of costs Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Lamar and Kitchens, JJ. Non Participating Judge(s): Dickinson, J. Concurs in Result Only: Randolph, J., Concurs in Result Only With Separate Written Opinion, Joined In Part by Pierce, J. ; Pierce, J., Concurs in Result Only With Separate Written Opinion Joined In Part by Randolph, J. Procedural History: Election Contest Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 10-13-2010 Appealed from: Hinds County Circuit Court Judge: Henry L. Lackey Disposition: The orderfrom the trial court, entered on October 13, 2010, denied the circuit clerks of Jasper, Simpson, and Smith Counties and an election commissioner of Covington County's complaint to enjoin the November 2, 2010, election for circuit court judge for the Thirteenth Circuit Court District. Case Number: 251-10-852CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Billy G. Rayner, in His Official Capacity as Circuit Clerk of Jasper County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi; Cindy Jensen, in Her Official Capacity as Circuit Clerk of Simpson County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi; Anthony Grayson, in His Official Capacity as Circuit Clerk of Smith County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi, and Richard Felton Aultman, in His Official Capacity as Election Commissioner of Covington County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi |
S. WAYNE EASTERLING |
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| Appellee: | Haley Barbour, in His Official Capacity as Governor of the State of Mississippi and as a Member of the State Board of Election Commissioners; Delbert Hosemann, in His Official Capacity as Secretary of State of the State of Mississippi, as the Chief Election Officer of the State of Mississippi, and as a Member of the State Board of Election Commissioners; and Jim Hood, in His Official Capacity as Attorney General of the State of Mississippi and as a Member of the State Board of Election Commissioners | OFFICE OF THE ATTORNEY GENERAL: HAROLD EDWARD PIZZETTA, III | ||
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| Topic: | Election contest - Judicial vacancy - Postponement of election - Section 9-1-103 - Section 23-15-849(1) - Write-in election - Section 23-15-365 - Assessment of costs |
| Summary of the Facts: | The circuit clerks of Jasper, Simpson, and Smith Counties and an election commissioner of Covington County have filed a petition for an expedited appeal of an order entered by the Circuit Court of Hinds County. The order, entered on October 13, 2010, denied their complaint to enjoin the November 2, 2010, election for circuit court judge for the Thirteenth Circuit Court District. The defendants are Governor Haley Barbour, Secretary of State Delbert Hosemann, and Attorney General Jim Hood, in their official capacities and in their capacities as members of the State Board of Election Commissioners. The Board had ordered a write-in election for the position of circuit court judge for the Thirteenth Circuit Court District after the death of the only candidate who had qualified for the position, incumbent Honorable Judge Robert Evans. The Supreme Court granted the petition for an expedited appeal. |
| Summary of Opinion Analysis: | The plaintiffs rely on section 9-1-103 and section 23-15-849(1) to support their argument that the regular election scheduled for November 2, 2010, should be postponed until November 2011. The plaintiffs argue that, because the election scheduled for November 2, 2010, will take place fewer than nine months from when the vacancy occurred, the election must be postponed until November 2011 so that nine months may pass before the election as required by section 23-15-849(1). The Board argues that section 23-15-849(1) applies only when a special election is required to fill a vacancy; in this case, the vacancy will end upon the expiration of Judge Evans’s four-year term on December 31, 2010, and the new four-year term will begin on January 1, 2011. Thus, the November 2, 2010, election will be to elect a new judge for the regular four-year term; it will not be a special election to fill a vacancy in an unexpired term. And, because Judge Evans died after qualifying for the November 2, 2010 election, section 23-15-865 applies, mandating a write-in election. The Board’s interpretation of the statutory scheme was permissible. It is plain that sections 9-1-103 and 23-15-849 promulgate a procedure to fill judicial vacancies. Upon the occurrence of a vacancy, the Governor must appoint a qualified person from the district to serve until the vacancy is filled by special election. A special election to fill the vacancy must take place more than nine months after the occurrence of the vacancy. However, the use of the word “or” in section 9-1-103 means that an election under section 23-15-849(1) need not occur if there is so little time in the unexpired term that the appointee may legally “serve for the unexpired term.” Here, Judge Evans passed away five months prior to the expiration of his term. The Governor, pursuant to section 25-15-849(1), appointed Judge Bowen to fill the vacancy. This “vacancy” will end on December 31, 2010, the date of the expiration of Judge Evans’s term, which is fewer than nine months after the vacancy occurred. The election for the new term of office is scheduled to occur on November 2, 2010, and Judge Evans already had qualified for that election. Because Judge Evans died fewer than nine months before the expiration of his term, section 9-1-103 permitted the appointee, Judge Bowen, to “serve for the unexpired term” with no requirement of a special election. Because Judge Evans passed away after qualifying for the November 2, 2010, election, a write-in election was proper. The issue here is that, under section 23-15-365, due to the death of the only candidate who had qualified before the qualifying deadline had passed, no name will be printed on the ballot, and the election will be only by write-in. In that circumstance, the election will proceed in the same manner as if no one had qualified to run as a candidate before the qualifying deadline. The Board has cross-appealed the assessment of costs against it. The Board did not object to the cost assessment, nor did the Board file a motion to reconsider the cost assessment. Therefore, this issue was not preserved for appeal. |
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