In a March 22 filing (PDF, 215 KB) in Hinds County circuit court, local WJNT host Kim Wade has responded to a motion from former Mayor Dale Danks, who serves as Mayor Frank Melton's private attorney, asking the court to dismiss Wade's call for Melton's removal from office.
On Feb. 16, Wade filed a petition for removal (PDF, 270 KB) arguing that after his conviction on misdemeanor weapons violations last November, Melton no longer had the right to hold public office. Wade based his argument on Article 6, Section 175 of the Mississippi Constitution, which states that "all public officers, who in wilful neglect of duty or misdemeanor in office, shall be liable to presentmnet or indictment by a grand jury; and, upon conviction, shall be remove from office, and otherwise punished as may be prescribed by law."
In a Feb. 21 response (PDF, 300 KB), Danks called Wade's petition "frivolous" and "vexatious." Danks urged Wade to retract his petition and threatened him with sanctions if he chose to proceed. Danks argued that Wade's petition has "no realitistic hope of success" because Wade misinterprets the meaning of "misdemeanor in office" and he has no standing to bring such a petition.
Now, in a new pro se filing, (i.e., Wade filed the response without benefit of formal legal counsel), Wade argues that Danks' arguments are incorrect.
Wade argues that he has standing for a number of reasons. First, if Melton is removed from office, Wade writes that he plans to qualify as a candidate for mayor in the special election that would follow, meaning that Wade has a stake in the court's decision. Wade also moves to amend his complaint to add Rick Whitlow, who ran as the Republican nominee for mayor in 2005, as a party, along with former Mayor Harvey Johnson Jr., who lost to Melton in the 2005 Democratic primary. "With these additional parties included, the necessary claimants will be before the Court, clearly satisfying the quo warranto statute," Wade wrote.
Wade goes on to cite Van Slyke v. Vd. of Trustees of State Institutions of Higher Learning to argue that he does have a standing to sue. "[T]he Supreme Court unequivocally recognized Mr. Van Slyke's standing" even though he was a private citizen, Wade wrote. Wade also cites Fordice v. Thomas, quoting from the Mississippi Supreme Court's decision: "In Van Slyke ... this court observed that the Constitution of this state does not impose the same "standing" requirements as the United State Constitution and that a private citizen has the right to challenge unlawful government action." (Emphasis added by Wade.)
Because neither the attorney general or the district attorney have honored the constitutional provision, Wade argues, "[t]he only recourse is for a citizen such as the Plaintiff to step in, just as Mr. Van Slyke and Ms. Thomas did before with the approval of the Mississippi Supreme Court."
Wade disagrees with Danks' interpretation of "misdemeanor in office." Danks argued that this constitutional provision was codified in Miss. Code 25-5-1, which specifies that a public office holder can only be removed upon conviction of a felony. Wade points out that the Constitution is superior to any statute and that "there is nothing in the language found in Section 25-5-1 to suggest that it was enacted as a means for implementing or interpreting Section 175 of the Constitution."
Wade contests Danks' interpetation of State of Nebraska v. Hergert, which Danks argued requires "corrupt intention" in an official for an act to qualify as a "misdemeanor in office." The real test, Wade contends, is whether the crime was related to the "officer's duty." Wade writes that the "facts easily bear out that the Defendant did this under color of his office, while acting as the mayor."
Wade points out that when Attorney General Jim Hood wrote Melton on May 26, 2006, warning him to obey the concealed weapons laws, Hood addressed the letter to Melton in his official capacity and to his official post office box. "[T]he Attorney General wrote the Defendant because the Attorney General believed that the Defendant was abusing his public office in a number of respects and, in particular, by carrying a handgun into prohibited locations," Wade wrote.
Wade concludes by arguing that Melton failed to meet a "positive statutory duty" by failing to enforce a "vital law," namely the concealed weapons law. "As set forth in the Plaintiff's complaint the Defendant broke the law while acting as mayor with police bodyguards surrounding him and by appearing at the church and school to speak as Mayor," Wade wrote. "Clearly these are misbehaviors/misdmeanors in office, and no corrupt motive is required."
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