### IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-IA-00587-SCT JOE D. CHANDLER

v. FLOY D McKEE

DATE OF JUDGMENT: 04/18/2016 TRIAL JUDGE: HON. BETTY W . SANDERS TRIAL COURT ATTORNEYS: W I LLIAM T. COOPER W A LTER H. ZINN, JR. COURT FROM W HICH APPEALED: CLAY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W A LTER H. ZINN, JR. ATTORNEYS FOR APPELLEE: W I LLIAM T. COOPER ELIZABETH F. JONES NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND REMANDED - 10/27/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE WALLER, C.J., LAMAR AND BEAM, JJ. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. F loy d McKee filed an election contest with t h e C l a y C o u n t y D e m o c ra t i c E x e c utive Committee (CCDEC) after he was defeated by J oe Chandler in the Democratic primary run-off election f or D istrict 5 Supervisor of Clay County

. A fter the CCDEC ruled in favor of Chandler,
McKee filed a petition for judicial review in Clay County Circuit Court. Chandler filed a motion to dismiss McKee’s petition, arg uing that it was not timely f iled. The instant interlocutory appeal arises from the circuit court’s denial of Chandler’s motion to dismiss. F inding that the circuit court erred in failing to g rant Chandler’s motion to dismiss, we r everse the circuit court’s judg ment a nd remand this case to the circuit court with instructions to dismiss McKee’s petition for judicial review.F ACTS AND P ROCEEDING S BELOW

¶2. On Aug ust 2 5, 2015, J oe Chandler defeated F loy d McKee in the Democratic p rimary run-off election for District 5 Supervisor of Clay County by a n eig ht-vote marg in. On September 14, 2015,
McKee filed a petition to contest the election with the CCDEC. 1 This petition was filed after McKee discover ed several voting irreg ularities at a voting precinct w hen canvassing ballot box es. These irreg ularities included votes cast b y nonresidents of Clay County , votes cast b y voters w ho had voted Republican in the first primary election, 2 and votes cast by voters w h o v oted with an “X” and had no witnesses. ¶3. After conducting a heari n g o n S e p t e m b e r 2 1 , 2015, the Committee, on September 23, ultimately denied McKee’s petition and affirmed the electio n results, f inding that there were no irreg ularities or illeg alities that would have chang ed the outcome o f the election. A s a result, McKee filed a petition for judicial review, p ursuant to Section 23-15-927 of the Mis s i s s i p p i C o d e , in the Clay County Circuit Court on October 2, 2015. I n turn, Chandler moved to dismis s f o r M c K ee’s f ailure to f

ile the petition within ten day s a fter the f iling of his complaint with the CCDEC, a s

r equired by Section 2 3 -15-927. Chandler arg ued that the p etition should have been f i l e d b y September 24, 2015, but was not filed until October 2, 2015. 3

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### T h e C C D E C ad m in istered th e p rim ary electio n . 2 

### T h e law p ro h ib its cro sso v er v o tin g in p rim ary ru n -o f f electio n s, w h ich so m e ref er to as th e “seco n d p rim a ry .”

3 

### M c K ee also c h allen g ed C h an d ler’s q u alif icatio n s a s an electo r. C h an d ler su ccessf u lly m o v ed to d i sm iss th is issu e. T h e circu it co u rt d eterm in ed th at M cK ee h ad f ailed to ch allen g e C h an d l er’s q u alif icatio n s w ith i n th irty -o n e d ay s af t er th e f irst p rim ary electio n , as req u ired b y S ectio n 2 3 -1 5

- 9 6 3 o f th e M ississip p i C o d e . T h at issu e is n o t b ef o re th is C o u rt o n ap p e al. 2¶4. The circuit court held that McKee’s petition was timely , interpreting Section 23-15-927 to

require the petition for judicial review to be filed within ten d ay s after the CCDEC reache d i ts decision and not within ten day s o f the filing of the c omplaint with the CCDEC. T h is Court g ranted Chandler’s petition f

or interlocutory appeal to review the trial court’s interpretation of Section 23-
15-927.
STANDARD OF REVIEW ¶5. W h en r eview i n g a t r i al court’s decision to deny a motion to dismiss, this Court will apply

a de n ovo standard o f review. Harris v. Miss. V alley State Univ. , 873 So. 2d 970, 988 (Miss. 2004).
Matters of statutory interpretation also are reviewed b y this Court using a d e n ovo standard. Wallace

v. Town of Raleigh , 815 So. 2d 1203, 1206 (Miss. 2002) ( citing Donald v . Am o co Prod. Co. , 735
So. 2d 161, 165 (Miss. 1999)). Similarly , “ [ i] n an election cont e s t , t h e s t andard of review f or questions o f law is de novo.” McDaniel v. Cochran , 1 58 So. 3d 992, 995 (Miss. 2014) (quoting
Garner v. State Dem ocratic Exec. Com m . , 956 So. 2d 9 0 6, 909 (Miss. 2007)) ( citing Ladner v. Necaise , 771 So. 2d 353, 355 (Miss. 2000))
DISCUSSION
Whether the trial court erred in denying Chandler’s m o tion to dism iss McK ee’s petition f or judicial review as untim ely. ¶6. Section 23-15-927 of the Mississipp i C o d e e s t ablishes the procedure for seeking judicial review of an unsuccessful county or s t atewide election contest. The statute p rovides in pertinent part: W h en and after any contest has been filed with the county ex ecutive committee, or complaint with the State E x ecutive Committee, and the ex ecutive committee h aving jurisdiction fails to promptly meet or, ha v i n g m et, fails or unreasonably delay s to fully act upon the contest or complaint or fails to g ive w ith reasonable prom p t n ess the full relief required by the facts and the l a w , t he c ontestant shall have the rig ht forthwith to file in the circuit court of the county in w hich the i r re gularities a re charg ed to h ave o c c urred, or, if more than one (1) county is involved, then in one (1)


### 3o f t h e c ounties, a sworn copy of his protest or c omplaint, tog e ther with a s w o r n

petition, setting forth with p articularity how the ex ecutive committee has wrong f ully failed to act or to fully and promptly investig ate or has wrong fully d enied the relief pray ed by the contest, with a pray er for a judicial r eview ther e o f

. A petition for judicial review must be filed within ten ( 10) days after any contest or c omplaint has been filed with an executive committee.
Miss. Code Ann. § 2 3-15-927 ( Rev. 2015) (emphasis added). The interpretation of the last sentence of the above-quoted lang uag e is the sole issue b ef o r e t h is Court. W h en a statute is plain and unambig uous, it is inappropriate for this Court to eng ag e in statutory interpretation, which is used only if the “statute is ambig uous or is silent on a specific issue.” Miss. Methodist Hosp. and Rehab. Ctr., I n c . v . Miss. Div. of Medicaid , 21 So. 3d 600, 607 (Miss. 2009) (citing In re Guardianship of D uckett , 991 So. 2d 1165, 1181 (Miss. 2008)). L eg islative intent is the controlling feature of statutory interpretation, and its key compo n e n t i s the a ctual tex t o f the statute, althoug h the Court also may analy z e the historical backg

round, purpose, and objectives. Id. ¶7. Prior to 2012, Section 23-15-927 did not conta i n a n e x plicit deadline for seeking judicial review of an election contest. I nstead, the statute simply provided that a “contestant shall have the rig ht forthwith to file [ a petit i o n f o r judicial review] in the circuit court o f the county wherein the irreg ularities are charg ed to have occurred[ .] ” M i ss. Code Ann. § 23-15-927 (2011). The term “forthwith” provided “no specific fix ed time limit” but was to be determined on a case-by

- case basis depending on the facts and circumstances of e ach case. P earson v. Parsons , 541 So. 2d 447, 450 (Miss. 1 989), superseded by statut e a s s t a t e d in McDaniel , 158 So. 3d 992. “This Court has interpreted ‘forthwith’ to be as few as four day s and as many as forty -one.” Id. (citing Shannon v. Henson , 499 So. 2d 7 58 (Miss. 1986), Sm ith v. Deere , 16 So. 2d 33, 35 (Miss. 1943)). T h e L eg islature amended Section 2 3-15-927 in 2012 b y adding the ten-day filing deadline that is the subject of the instant appeal. See 2 012 Miss. L aws Ch. 476, § 1.



### 4¶8. Althoug h the current version of Section 23-15-927 ex plicitly requires a petition for judicial

review to be filed within ten day s after a complaint has been filed with a state or county ex ecutive committee, the circuit court found this lang uag e to be ambig uous when compared to the statute as

a whole. The court reached this conclusion after determining that Section 23-15-927 still allows a “forthwi t h ” f

i l i n g when “the e x ecutive committee having jurisdiction f a ils to promptly meet, or having met, fails or unreasonably delay s to f ully act upon the contest or c o m p laint or fails to g ive with reasonable promptness the full relief required b y the facts and the law

. . . .” Miss. Code Ann. § 2 3-15-927. The court reasoned that, because the Committee d id not fail to meet promptly and did

not delay unreasonably to fully act u pon the complaint, McKee “would be in direct o pposition to the statute had he filed a petition for judicial review within ten (10) day s after the complaint had been filed under the g uise of the Ex ecutive Committee f a iling to promptly meet.” The court also looked

a t the history of the statute and c oncluded that this Court has held multiple times that th e r e i s n o fix ed time limit to file a petition for judicial review under Section 23-15-927. See, e.g., Pearson , 541
So. 2d at 450. T he c ourt f urther r easoned that the Committee must render a decision before judicial review c an be soug h t, as evidenced by the wording o f the statute: “the filing of the petition f or judicial review in the manner set forth in this statute shall automatically supersede a nd suspend the operation and effect of the order, ruling , or judg ment of the Ex e cutive Committee appealed from.” Miss. Code Ann. § 23-15-927. Since the statute contemplates an “order, ruling , or judg ment” from the ex ecutive committee, the circuit court found that the L e g islature intended to r equire a petition

to be f iled within ten day s a f

ter such an order, ruling , or judg ment w as rendered. F or these reasons, the c ircuit court concluded that the statute does not support an interpretation requiring a petition f or judicial review to b e filed w ithin ten day s o f the filing o f a contest or a c omplaint with an ex ecutive committee.



### 5¶9. Chandler arg ues that the circuit co u r t e r r e d in rely ing on cases decided prior to the 2012 amendment o f Section 23-15-927 to interpret the w ord “for t h w i t h ” and the broader intent of the statute, because the circuit court’s interpretation conflicts with the L eg islature’s ex plicit addition of

a ten-day filing deadline. This Court recently addressed the 2012 amendment of Section 23-15-927 in a c ase involving another provision in the Mississippi Election Code. McDaniel , 158 So. 3d at 993. I n McDaniel , Th a d C o c h r a n d efeated Chris McDaniel in a Republican primary election f or U.S. Senator. Id. McDaniel f i l e d a n election contest with the State Republican Ex e cutive Committee (SREC) forty -one d ay s a fter the e lect i o n . Id. After the SREC declined to consider McDaniel’s complaint, he f

i l e d a p e tition for judicial review. Id. The circuit c ourt dismissed McDaniel’s petition, finding that he had failed to file his complaint w ith the SREC within twenty day s of the election. Id. at 9 9 4

. O n appeal, McDaniel arg ued that Section 23-15-923, the statute setting the procedure f

or contesting c ong ressional elec t ions, did n ot include a specific filing deadline as a matter of leg islative intent. Id. a t 995. I n supp o r t of this arg ument, McDaniel attempted to c ompare two other provisions in the Election Code. Id. at 995-96. Section 23-15-921, which sets the procedure for contesting a sing le-county election, includes a c lear twenty -day filing d eadline. Id. at 995 (citing Miss. Code Ann. § 23-15-921 (Rev. 2007)). On the other hand, McDaniel arg ued that Section 23-
15-927 did not include a definite filing d eadline but merely required a p e tition for judicial review

to be filed “forthwith.” Id. at 996. This Court rejected McDaniel’s interpretation of Section 23-15- 927, acknowledg ing that “Section 23-15-927 was a mended in 2012 and now g ives challeng ers ten da y s t o f i l e a petition for judicial r eview.” Id. (citing Miss. Code A nn. 23-15-927 (Supp. 2014)). The Court ultimately affirmed the circuit court’s dismissal of McDaniel’s petition, finding that the
L eg islature had acquiesced to the judicial interpretation of Section 23-15-923 as having a twenty -day filing deadline. Id. at 1001-02.



### 6¶10. W h ile M c D a n i e l a d d r e s s e d a d i fferent provision of the Mississippi Election Code, it supports Chandler’s position in two wa y s . F irst, the McDaniel Court clearly rejected the arg u ment that Section 23-15-927 does not contain an ex plicit filing deadline, recog niz ing that it had been amended in 2012 to include a ten-day deadline. Id. a t 996. Second, the McDaniel Court’s discussion of leg islative adoption of the judicial interpretation o f a statute is applicable to the instant case. Section 23-15-923, the statute at i ssue in McDaniel , does not include an ex plict f iling deadline, but this
Court previously interpreted it as c o n t a i n ing a twenty -day deadline. Id. at 998 (citing Kellum v. Johnson , 158 So. 2d 147, 1498 (Miss. 1959). A fter Kellum was d ecided, the L eg islature reenacted Section 23-15-923 wit h o u t material chang e. Id. at 999. Thus, “[ t] h e Court’s interpretation of the

statutes in Kellum was a

pproved by the L eg islature, and, a bsent leg islative action, has become a part of the statute.” Id. at 1000. ¶11. W ith Section 23-15-927, on the other hand, the L eg islature materially altered the statute in
2012 by r equiring petitions for judicial review to be filed “within ten (10) day s after any contest or complaint has been filed with an ex ecutive committee.” Miss. Code Ann. § 23-15-927. Thus, the
L eg islature clearly did not adop t t h i s Court’s prior interpretations of Section 23-15-927 by acquiescence. ¶12. B e cause the L eg islature materially chang ed Section 23-15-927 in 2012 by adding a ten-day filing requirement, we find that the circuit court e rred in rely ing on cases that interpreted previous versions o f the statute. Section 23-15-927 is n either ambig uous nor silent rega r ding the filing deadline, and, theref

o r e, t h e p l a in meaning o f the statute should b e applied b ecause it is the best evidence of leg islative intent. McKee arg ues, as the circuit court f ound, that it would be illog ical to f i l e a p e t i tion for judicial review without first o btaining a ruling f rom the Committee, becau s e Section 2 3-15-927 provides that the filing of such a petition “sha l l au t o m atically supersede and



### 7suspend the operation and e ffect of the order, r uling or judg ment of the ex ecutive committee appealed from.” Miss. Code Ann. § 23-15-927. B ut Section 23-15-927 c o n t a i n s no lang uag e requiring the petitioner to wait until the ex ecuti v e c ommittee has ruled before filing a p etition f or judicial review. On the contrary , the statute clearly requires the petition to be filed within ten day s of the filing of the complaint with the ex ecutive committee, without r eg a rd for whether the ex ecutive committee has ruled on the complaint. The L e g islature’s amendment o f Se ction 23-15-927
recog niz es the policy that “election contests (both primary and g eneral) are by t h ei r v e ry nature required to be put on a ‘fast-track’ b y both el e c t i o n o f ficials a nd the c ourts. W hile we all want to

assure fairness and discern the will of the vot e r s , w e m u s t move promptly so as to not disrupt the election process.” Waters v. Gnem i , 907 So. 2d 307, 316 ( Miss. 2005). The sta tutory lang uag e quoted by McKee merely confirms that, in the event that the ex ecutive committee r ules on the election contest, the timely filing of a p etition for judicial review supersedes and suspends that ruling

. ¶13. W e must follow the tex t of the statute when it is clear and unambig uous. I t is not this Court’s duty to chang e statutory lang uag e where it sees fit, b u t only to interpret the lang uag e provided by the
L eg islature. Stockstill v. State , 854 So. 2d 1017, 1 0 22-23 ( Miss. 2003). B e cause McKee did not comply w ith the ten-day filing requirement, we hold that h is petition for judicial review was untimely and should have been dismissed.

CONCLUSION ¶14. F or the reasons stated above, we reverse the circuit court’s judg ment and remand the case to the circuit court with instructions to dismiss McKee’s petition for judicial review. 

### ¶15. REVERSED AND REMANDED.

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### DICKINSON AND RANDOLPH, P.JJ., LA M A R, KITCHENS, KING,

COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.

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