E-Filed Document Jul 26 2016 13:13:30 2015-EC-01677-SCT Pages: 13

IN THE SUPREME COURT OF MISSISSIPPI

TASHA DILLON

vs.

DAVID MYERS

APPELLANT

NO. 2015-CA-01677

On Appeal From the Circuit Court of Pike County, Mississippi Cause Number 15-172-PCT Honorable James D. Bell

Reply Brief of Appellant Tasha Dillon

Oral Argument Requested

APPELLEE

ANTHONYR. SIMON (MS BAR 10009)

PIETER TEEUWISSEN (MS BAR 8777) SIMON & TEEUWISSEN, PLLC 621 EAsT NORTHSIDE DRIVE

JACKSON, MISSISSIPPI 39206

PHONE: 601-366-8400

COUNSEL FOR APPELLANT

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made in order

that the Justices of Supreme Court and/or the Judges of the Court of Appeals may

evaluate possible disqualification or recusal:

Tasha Dillon Appellant

Pieter Teeuwissen, Esq. Anthony R. Simon, Esq. Counselfor Appellant

David Myers Appellee

David Baria, Esq. Brandon Jones, Esq. Counselfor Appellee

Board of Election Commissioners of Pike County, and Pike County Circuit Clerk Roger Graves Intervenors

CharlesWayne Dowdy, Esq. Counselfor Intervenors

Hon. James D. Bell, Special Judge

Respectfully Submitted,

Tasha Dillon, Appellant

By: ls/Pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon

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TABLE OF CONTENTS

TITLE

CERTIFICATE OF INTERESTED PERSONS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE ISSUES

STATEMENT REGARDING ASSIGNMENT AND ORAL ARGUMENT

INTRODUCTION

REPLY ARGUMENT

I. The Trial Judge erred by not exercising jurisdiction

II. Myers' Defense of the County Election Officials is Without Substance

CONCLUSION

CERTIFICATE OF SERVICE

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IV

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TABLE OF AUTHORITIES

CASES PAGES

Barbour v . Gunn, 890 So.2d 843 (Miss. 2004) ....... ............................. .... ........... ........ ............... ............. 5, 6

Cameron v. Mississippi Republican Party, 890 So.2d 836, 840 (Miss. 2004) ......................................................... .......................... 5

Esco v. Blackmon, 692 So.2d 74, 77-78 (Miss. 1997) ................. ..... ................ .. .... ....... ...................... .......... 5

Foster v. Harden, 536 So.2d 905 (Miss. 1998) ....... ............ .................................................................. ,4, 5, 6

Graham v. State, 2014-KA-01783-COA (Miss. Ct. App. 2016) (Miss. 2013) ............................ .. ....... ..... 5, 6

Lewis v. Forest Family Practice Clinic, PA., 124 So.3d 654, 658 (Miss. 2013) ................................................................................... 5

Mississippi Dept. of Revenue v. AT&T Corp., 101 So.3d 1139, 1143 (Miss. 2012) ....... ..... ................. ............. ... ....... .. ............... .............. 6

OTHER AUTHORITIES:

MISS. CODE ANN. § 23-15-927 ............................................. ............................................ 1, 2

Mrss. CoDEANN. §23-15-951 .......... ..... ...................... .......... ..... ..... .............. ...................... 4

MISS. CODE ANN. §23-15-955 ........................ ................................................. ... .................. 4

Mississippi Constitution of 1890 Article 4, § 38 ............... ....................... ........ 2, 3, 4,5

Mississippi House of Representatives Internal Rule 104B .......... ........................ ,4, 5

Mississippi Rules of Civil Procedure 24(2) ........................ .. .......... ..................... ... . 7

Mississippi Rules of Civil Procedure 81(a)(4) ...... ................... ...................... .... .......... 7

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STATEMENT OF THE ISSUES

The issues that this Court should resolve on appeal are:

I. MISS. CODE ANN. §23-15-927 establishes judicial review of primary election disputes where a party executive committee fails to act. The incumbent sought resolution in the Legislature, who subsequently declined to review a primary election contest. Therefore, the trial court's procedural dismissal without holding an evidentiary hearing was erroneous.

II. MISS. CODE ANN. §23-15-927 establishes the role of election comm1ss1oners during the proceedings of a special tribunal. Intervention as parties by the Election Commission and Circuit Clerk is contrary to statutory responsibilities. Therefore, the trial court erred by allowing intervention.

STATEMENT REGARDING ASSIGNMENT AND ORAL ARGUMENT

The Supreme Court should retain jurisdiction of this appeal. This appeal

involves resolving ambiguity as to whether the proper forum for reviewing a primary

election challenge for a seat in the Mississippi House of Representatives is the

Judiciary or the Legislature. Resolving this issue involves reconciling ART. 4, § 38 of

the MISSISSIPPI CONSTITUTION of 1890 with MISS. CODE ANN. § 23-15-927 (Supp. 2014)

and other applicable authority. This determination is a fundamental and urgent issue

of broad public importance requiring ultimate determination by the Supreme Court.

For these same reasons, Appellant Dillon requests oral argument.

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INTRODUCTION

The parties to this legislative election contest agree that inquiry in this matter

begins with MISS. CONST. ART. 4, § 38. From that provision, the parties' analysis

diverges distinctly. Appellant Dillon urges this Court to consider applicable statutes

and case law precedent. Appellee Myers, on the other hand, urges a meandering

analysis through the statutes and application of different case law. The difference, of

course, is that Appellant Dillon seeks a hearing on the merits of this election contest;

Appellee Myers urges no such factual review is necessary. The result is that if Myers'

argument is persuasive, then the election is not subject to review and it will become

impossible to discern the will of the voters.

REPLY ARGUMENT

I. The Trial Judge erred by not exercising jurisdiction

Dillon's Appellate Brief explained that while the MISSISSIPPI

CONSTITUTION ART. 4, § 381 vests the House with the power to decide its members, the

House has in turn reserved this power for general election contests only while

delegating to the courts via statute and internal rule resolution of primary election

contests. Dillon Br. at 8-13. Myers' Brief repeatedly ignores this delegation by the

House and, instead, argues for broad application of case law that pre-dates revised

election statutes and subsequent authority on point.

1 "Each house shall elect its own officers, and shall judge of the qualifications, return and election of its own members."

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Myers argues that MISS. CODE ANN. §23-15-951 carves out an exception via the

"except as otherwise provided by §23-15-955" language. On the contrary, §23-15-955

returns the review to the §23-15-951 framework. Section 23-15-955 does two things:

• First, it codifies MISSISSIPPI CONST. ART. 4, § 38; and,

• Second, it states that "[T]he legislative resolution of the election contest shall be conducted in accordance with procedures and precedents established b)'. the House of Representatives or the Senate, as the case may be." (emphasis supplied).

Myers does not address this second essential statutory element preferring,

instead, an incomplete analysis. This is understandable since the "procedures and

precedents" of the House as found in both §23-15-951 (precedent) and House Rule

104B (procedure) support Dillon's position. Rule 104B specifically states that

"[A]nyone desiring to contest the election, other than a primary election, of a

member returned as elected to the Mississippi House of Representatives" may file a

petition before the House (emphasis added). Notably, Myers does not reference or

address House Rule 104B. However, Rule 104B specifically opts-out primary election

contests, and thus, the "except as provided" language doesn't create the exception

proffered by Myers. Rather, a reading of §23-15-951 in context with House Rule 104B

creates the "constitutional harmony amongst the various branches of government" as

referenced in Myers' Brief, Footnote 8.2 The House retains jurisdiction over general

election contests, but the House assigns resolution of primary election contests to the

courts.

2 As the Foster dissent notes (Zucarro, J. joined by Chief Justice Lee and Sullivan, Robertson, J.), the Foster majority departed from "precedent barely a year old and from a premise fundamental to our law ... the most that may be said for the view of today's majority is that §38 of our Constitution establishes a regime of concurrent jurisdiction." Foster at 908.

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Myers rests heavily on Foster v. Harden, 536 So.2d 905 (Miss. 1998). The 5-4

Foster decision appears at first blush indistinguishable from the present appeal. The

Hinds County Circuit Court granted Harden' s motion to dismiss based on ARTICLE 4, §

38, and dismissal was affirmed on appeal. Closer inspection, however, reveals Foster

is not on point. First, Foster involved only a qualifications challenge, not a

challenge to election day activities and vote counts. Qualification issues are generally

known pre-election; voting day activities and counts are generally identified post-

election. Second, Foster filed her court challenge to qualifications after the elections3.

Third, unlike Dillon, Foster failed to cite any statute or House Rule which established

court jurisdiction or which interpreted ARTICLE 4, § 38. Fourth, Foster pre-dates both

Barbour v. Gunn and the statutes (as amended) cited by Dillon. Finally, the Foster

language is indeed self-limiting in its statement that " ... the circuit court had no

jurisdiction to determine the issue here involved." Foster at 907.

Myers' porous position fails upon thorough analysis, and thus, his argument

fails in its entirety. Nevertheless, a couple of other positions raised by Myers warrant a

brief reply. Myers contends in Footnote 2 that the Mississippi Democratic Party, "on

information and belief' considered Dillon's Petition. This is news to Dillon, and this

was not raised before either the trial court or the House of Representatives. Thus,

whether the Executive Committee did or did not consider Dillon's Petition is

inapposite to these proceedings; at best it's waived. See generally, Lewis v. Forest

Family Practice Clinic, P.A., 124 So.3d 654, 658 (Miss. 2013); Graham v. State, 2014-

3 Esco v. Blackmon, the other case on which Myers relies heavily, is likewise in a different procedural posture than the case at bar. Justice Carlson noted this important procedural distinction in Cameron v. Mississippi Republican Party, 890 So.2d 836, 840 (Miss. 2004). Esco was afforded a hearing before the House and lost. In the present matter, the House followed its procedural Rule 104B and declined to hold a hearing.

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KA-01783-COA (Miss. Ct. App. 2016) (,i 20, failure to raise an argument before the

circuit court procedurally bars the issue on appeal).

Myers attempts to gloss over the case most opposite to his incomplete position,

Barbour v. Gunn, 890 So.2d 843 (Miss. 2004). Gunn, according to Myers, is

distinguishable because constitutional jurisdiction was not raised. Appellant's Br. at

10. This one-sentence dismissal ignores the fact that the Supreme Court has a sua

sponte obligation to examine jurisdiction. As Justice Randolph emphasized in

Mississippi Dept. of Revenue v. AT&T Corp., 101 So.3d 1139, 1143 (Miss. 2012), "[T]his

Court has previously stated that:

[o]n every writ of error or appeal, the first and fundamental question is that of jurisdiction ... This question of the court is bound to ask and answer for itself, even when not otherwise suggested ... (internal citations omitted).

Hence, Myers' attempt to distinguish the case on point, Gunn, requires this

Court to acknowledge it failed in its fundamental duty to consider jurisdiction. Myers

extends this argument by stating that there is no "single instance where a different

conclusion was reached when the constitutional jurisdiction of the House or Senate

was raised." Myers' Br. at 10. Nothing in Gunn or other election case law citing Gunn

supports such a leap that this Court has routinely ignored the presence of a jurisdiction

issue4.

Myers' arguments are misplaced. Myers is asking this Court to establish a

procedural dilemma which would leave Dillon without an opportunity to pursue a

remedy. Myers apparently doesn't want the facts presented. Why? If Dillon's

4 As the majority notes in Foster, "[T]o be sure, this Court is bound to raise jurisdictional issues on its own ... " .

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allegations are without factual support, Myers should welcome independent review

pursuant to this Court's precedent.

II. Myers' Defense of Intervention by County Election Officials is Without Substance

Myers, apparently concerned that this Court might actually return this

matter to the trial court for a hearing on the merits, staunchly defends the intervention

by the Circuit Clerk and Election Commissioners ("Election Officials"). Myers makes

much ado with Dillon's allegations of inefficiency or impropriety, yet fails to cite a

single case in support of intervention. Likewise, Myers does not address any of the

cases cited by Dillon as opposing intervention. Instead, Myers places emphasis on

M.R.C.P. 24(2), permissive intervention, arguing that intervention is permissible

because Dillon made allegations in her petition (as required).

AB with Myers "constitutional harmony" argument, Myers "Election Officials"

argument is incomplete. This Court need not weigh Rule 24 permissive intervention,

as this Court has already decided in M.R.C.P. 81(a)(4) that the rules of civil procedure

are of "limited applicability" in actions "generally governed by statutory procedures"

such as "proceedings pertaining to election contests". AB Dillon explains in her

Appellate Br. at 13-14, the election officials' duties are prescribed by statute. Rule 81

yields the Mississippi Rules of Civil Procedure to statutes in election contests, and thus

Rule 24 cannot create a new procedure inconsistent with the statutes.

Myers offers nothing to counter Rule 81 and the statutes/case law cited by

Dillon, and, therefore, this issue is arguably confessed.

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CONCLUSION

For the foregoing reasons, as well as those detailed Appellee's Brief, this Court

should return this matter to the trial court for a hearing on the merits. Any other

decision results in this legislative election contest dying without any merits review.

Discerning the will of the voters in this matter deserves better than that.

RESPECTFULLY SUBMI'ITED, this the 26th day of July, 2016.

Tasha Dillon, Appellant

By: ls/Pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon

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CERTIFICATE OF SERVICE

The undersigned certifies that he has this day electronically filed the foregoing

document with the Clerk of the Court using the Court's electronic filing system (ECF),

which sent notification of such filing to all attorneys of record as follows:

Wayne Dowdy, Esq. Dowdy, Cockerham &Watt 215 East Bay Street Magnolia, Mississippi 39652

David Baria, Esq. Baria-Jones, PLLC 544 Main Street Bay Saint Louis, Mississippi 39520

Brandon Jones, Esq. Baria-Jones, PLLC 4316 Old Canton Road, Suite 100A Jackson, Mississippi 39211

The undersigned further certifies that he has this day caused to be mailed by

United States Mail, postage pre-paid, a true and correct copy of the above and

foregoing document to the following:

Hon. James D. Bell, Special Judge 318 South State Street Jackson, Mississippi 39201-4417

Respectfully submitted this the 26th day of July, 2016.

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ls/Pieter Teeuwissen PIETER TEEUWISSEN, MSB # 8777 Attorney of Record for Tasha Dillon