IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-EC-00884-SCT
G. DAVID GARNER
v.
STATE OF MISSISSIPPI DEMOCRATIC
EXECUTIVE COMMITTEE, WAYNE DOWDY,
CHAIRMAN, AND WILTON A. MCNAIR
DATE OF JUDGMENT: 05/24/2007
TRIAL JUDGE: HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAVID SHOEMAKE
AUDRY REGNAL BLACKLEDGE
DAVID GARNER
OBY THOMAS ROGERS
ATTORNEY FOR APPELLEE: BEN J. PIAZZA, JR.
NATURE OF THE CASE: CIVIL - ELECTION CONTEST
DISPOSITION: REVERSED AND RENDERED - 06/07/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
¶1. Wilton A. McNair filed papers to qualify to run for the office of District Attorney for
the Thirteenth Circuit Court District in the August 7, 2007, Democratic Party primary
election. G. David Garner, a resident of the district, filed an objection to McNair’s
candidacy. Garner alleged that McNair is not a resident of the Thirteenth District, which
includes Covington, Jasper, Simpson, and Smith Counties. The State of Mississippi
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Democratic Executive Committee rejected that objection and certified McNair as a qualified
candidate. Garner sought judicial review as authorized by Miss. Code Ann. § 23-15-961, and
the special judge found that McNair was a resident of Covington County and that he was
qualified to run for office in the Thirteenth District. Garner appealed. In light of the
impending deadlines for finalizing the ballots and pursuant to Miss. Code Ann. § 23-15-
961(6) (Rev. 2001), we have expedited this appeal. We find that the trial court erred in
ruling that McNair is a resident of Covington County. We conclude that McNair is not a
qualified candidate for the position and that his name should be stricken from the ballot.
FACTUAL BACKGROUND
¶2. McNair and his wife bought a house in Jackson, in Hinds County, in 1994. They
continue to own that home and spend the majority of their time there. McNair is an assistant
district attorney in the Twenty-First Judicial District, which includes Yazoo, Humphreys, and
Holmes Counties. His wife teaches school in Jackson. McNair testified that he and his wife
spend week nights at the house in Jackson because it is closer to their employment locations.
McNair and another witness testified that since March of 2007, when the challenge to his
candidacy was filed, the McNairs have spent the weekends at a family-owned house in
Collins, Covington County. The McNairs attend religious services at a church in Jackson
where Ms. McNair serves on the ministerial staff.
¶3. Indisputably, the Jackson house was McNair’s residence and domicile until at least
late in 2002. At that point, McNair decided to run for District Attorney of the Thirteenth
District, which is composed of Covington, Jasper, Simpson, and Smith Counties. He
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withdrew the homestead exemption he had previously filed for his home in Jackson. He also
registered to vote in Covington County in 2002, at a time when he resided in Hinds County.
Even though he claimed that the Hinds County home was no longer his principal residence
when he withdrew his claim for homestead in 2002, McNair signed a deed of trust in
November of 2004 in which he stated that the Jackson home was in fact his principal
residence and would remain so for a year after execution of that document.
¶4. McNair grew up in Covington County. Prior to 2005, his mother owned property and
a home outside Collins. The house was rented by a tenant who has lived there for
approximately six years. All of the utilities for the Covington County house are in the
tenant’s name. In 2005, McNair’s mother transferred a one-fourth interest in the property
to McNair.
¶5. McNair claims that he considers himself to be a Covington County resident as that is
where he was raised, where some of his family lives, where he owns property, and where he
does his banking. He claims that he has stayed in the home in Collins at various times over
the years. After the candidacy contest was filed in March, McNair changed his driver’s
license address from Jackson to a post office box in Collins. Covington County also allowed
him to claim a one-fourth homestead exemption on his interest in the Covington County
property. McNair also signed a lease on the Collins house in which he and his wife are co-
tenants along with the state trooper who was already living there. Finally, McNair claims
that he is renovating his house in Jackson so that he can sell it. The house is not presently
for sale. McNair further stated that if he loses the election, he intends to maintain a home in
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Jackson for convenience in commuting. According to McNair’s testimony, whether he will
move to Covington County is contingent upon his winning the election.
ANALYSIS
¶6. The trial judge erred in determining that McNair is qualified to run in Covington
County. In an election contest, the standard of review for questions of law is de novo.
Ladner v. Necaise, 771 So. 2d 353, 355 (Miss. 2000) (citing Saliba v. Saliba, 753 So. 2d
1095, 1098 (Miss. 2000)). Further, we review findings of fact by a trial judge sitting without
a jury for manifest error, i.e., whether the findings were the product of prejudice, bias, or
fraud, or manifestly against the weight of the credible evidence. Boyd v. Tishomingo Co.
Democratic Exec. Comm., 912 So. 2d 124, 128 (Miss. 2005).
¶7. A candidate for district attorney is required to be a resident of the district. Miss. Code
Ann. § 23-15-299(7) requires the political parties to determine the qualifications of the
candidates seeking office. The primary qualification is “whether each candidate is a
qualified elector of the state, state district, county or county district which they [sic] seek to
serve. . .” The committee’s obligation to determine residency is reiterated in Miss. Code
Ann. § 23-15-359(9) (Rev. 2001).
¶8. In Mississippi, residence and domicile are synonymous for election purposes. Hinds
County Election Comm'n v. Brinston, 671 So. 2d 667, 668 (Miss. 1996). A person’s
domicile in election matters has been defined as the place:
where he has his true, fixed, permanent home and principal establishment, and
to which whenever he is absent, he has the intention of returning. . . A
domicile continues until another is acquired; before a domicile can be
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considered lost or changed, a new domicile must be acquired by removal to a
new locality with intent to remain there, and the old domicile must be
abandoned without intent to return thereto.
Smith v. Deere, 195 Miss. 502, 505-06, 16 So. 2d 33, 34 (1943)(internal citations omitted).
¶9. The question is whether the trial court was manifestly wrong in determining that
McNair’s true home and principal establishment is in Covington County. We determine that
the trial court erred in that finding. The proof put forth at the hearing overwhelmingly
evidences that McNair resides in Hinds County and had not established residency in
Covington County.
¶10. The trial judge determined that the McNairs had never established Jackson as their
permanent residence and had never abandoned their previous domicile in Covington County.
He based that finding on McNair’s extensive testimony “that he considered Covington
County to be his home, and . . . that the home in Jackson was for the convenience of
shortening commuting times to and from work.”
¶11. We find that the trial court clearly erred in finding that McNair was never a resident
of Hinds County. McNair admits that his residence was in Jackson until he decided to run
for District Attorney in Covington County in 2002, when he first took steps to circumvent
the election, homestead, and voting laws of this State. Only then did he drop his homestead
exemption in Hinds County and change his voter registration to Covington County.
¶12. The question then is whether McNair abandoned his established Hinds County
domicile in 2002 when he chose to run for office in Covington County. Evidence supporting
McNair’s claim of a change in domicile includes that he changed his voting registration to
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Covington County in 2002. Further, he has purchased his car tags in Covington County since
2002. Other than those changes, there is little if any evidence that McNair abandoned his
Hinds County residence and established a residency and a domicile in Covington County.
Although he claims that he intended Covington County to be his residence, he was still
residing in the Jackson home. He spent the great majority of his time there compared to
Covington County. After this candidacy contest was filed, McNair undertook additional
measures to try to shore up his claim of Covington County residency. He changed his
driver’s license from Jackson to a Covington County post office box. He filed for homestead
exemption in Covington County on his quarter interest in his mother’s former home. He
signed a lease to share the house which was already rented by a state trooper, and he claims
that he began spending weekends in Covington County.
¶13. McNair claims that the house in Jackson is not his permanent residence and that he
maintains that home and spends time there for convenience purposes only. The Jackson
house is much closer to where he currently works and where his wife works. We find
unpersuasive McNair’s argument that he maintains the house in Jackson for convenience
only. McNair bought the Jackson house in 1994. McNair worked for Rusty Fortenberry,
then District Attorney of the Thirteenth District, until 1999. McNair lived in the house in
Jackson while working in the Covington County district and continued to live there even
after he took a job with a district attorney’s office on the Gulf Coast in 1999.
¶14. After a review of the evidence, we find that McNair has not established a residency
or a domicile in Covington County. Despite McNair’s declared desire to be a Covington
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County resident, we conclude that his legal residence is located in Hinds County. McNair’s
assertions of residence in Covington County are completely contradicted by his actual living
arrangements. McNair’s “true, fixed, permanent home and principal establishment” is in
Jackson. We therefore find that McNair is not qualified to run for office as a Covington
County resident.
¶15. McNair also argues that the determination of his residency is premature at this point.
He claims in essence that a candidate’s qualifications should not be judged until the time of
the election. He cites Miss. Code Ann. § 23-15-299(7) (Rev. 2001), which states:
Upon receipt of the proper fee and all necessary information, the proper
executive committee shall then determine whether each candidate is a qualified
elector of the state, state district, county or county district which they seek to
serve, and whether each candidate meets all other qualifications to hold the
office he is seeking or presents absolute proof that he will, subject to no
contingencies, meet all qualifications on or before the date of the general or
special election at which he could be elected to office.
This Court has ruled that the statutory framework for determining a candidate’s qualifications
requires that the determination be made upon filing for office and not at the time of the
election. In Grist v. Farese, 860 So. 2d 1182 (Miss. 2003), this Court considered a case in
which a candidate’s qualifications for office were challenged upon his filing to run for
district attorney. The trial judge ruled that the issue entailing whether the candidate had been
practicing law for two years was premature in that, theoretically, the candidate might begin
practicing law between the time of qualification for office and the election. This Court ruled
that the circuit judge’s interpretation of Miss. Code Ann. § 23-15-299(7) negated the
qualification challenge process otherwise set out in the statute and that qualification
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questions could be determined prior to the election. The statute requires the committee to
find that each candidate meets the residency requirements or has presented absolute proof
that he will meet the residency requirements, subject to no contingencies, at the time of the
general election.
¶16. According to the statute, determination of the residency issue prior to the election is
not premature. At qualification, McNair was required either to reside in the district or
present absolute proof without contingency that he will reside in the district at the time of the
election. McNair failed to meet either requirement.
CONCLUSION
¶17. We conclude that the trial judge erred in finding that McNair is a qualified candidate
for office in the Thirteenth Judicial District. We find that McNair resides at his home in
Jackson where he lived seven days a week prior to the candidacy contest and still lives at
least five days a week even now. The trial court’s judgment is therefore reversed and
judgment is rendered for Garner. McNair’s name shall not be placed on the ballot.
¶18. In light of exigencies related to finalizing the ballot, and pursuant to this Court’s
obligation to expedite candidate qualification appeals, any motion for rehearing shall be filed
on or before June 11, 2007. Any response thereto shall be filed on or before June 13, 2007.
¶19. REVERSED AND RENDERED.
WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ.,
CONCUR. SMITH, C.J., AND DICKINSON, J., NOT PARTICIPATING.
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