E-Filed Document Feb 5 2024 10:53:10 2023-EC-01149-SCT Pages: 30

IN THE SUPREME COURT OF MISSISSIPPI

DAVID L. ARCHIE APPELLANT

V. NO. 2023-EC-01149-SCT

ANTHONY "TONY" SMITH APPELLEE

ON APPEAL FROM
THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI
FIRST JUDICIAL DISTRICT

APPELLANT'S BRIEF

ORAL ARGUMENT REQUESTED

Matthew Wilson (MS Bar 102344)

The Law Office of Matthew Wilson, PLLC
2218-B West Main Street
Tu pelo, MS 38801
T: (662) 260-6544 /F: (662) 546-4893
lawyermatt@betteraskmatt.com
Attorney of Record for the Appellant
 IN THE SUPREME COURT OF MISSISSIPPI

DAVID L. ARCHIE APPELLANT

V. NO. 2023-EC-01149-SCT

ANTHONY “TONY” SMITH APPELLEE

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record hereby 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 the Supreme Court and/or the Judges of the Court of Appeals

may evaluate possible disqualification or recusal.

Special Judge: The Honorable Barry Ford

Appellant: David L. Archie

Appellee: Anthony “Tony” Smith

Former
Appellees: Sandra McCall

Jacqueline Amos

The Hinds County Democratic Election

Committee

Zack Wallace,
Circuit Clerk of Hinds County

Toni Johnson

Elections Systems and Software

ii
Appellant’s
Attorney: Matthew Wilson

Appellant’s
Former Attorney: Bernetta Markice Garrett-Levison

Appellee’s
Attorney: Warren Louis Martin Jr.

Attorneys for
Former Appellees: Samuel L. Begley

Danny E. Cupit

Pieter John Teeuwissen

Lisa Mishune Ross

/s/ Matthew Wilson ____________________

Matthew Wilson (MS Bar #102344)

iii
 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ................................................................ ii

TABLE OF CONTENTS .................................................................................................. iv

TABLE OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE ISSUE......................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ....................................................... 2

STATEMENT OF THE CASE .......................................................................................... 3

I. Relevant Procedural History .......................................................................3

II. Relevant Facts ..............................................................................................5

SUMMARY OF THE ARGUMENT ................................................................................ 7

ARGUMENT ..................................................................................................................... 9

I. Standard of Review...................................................................................9

II. Because the Circuit Clerk’s Office Doors Were Locked, Its
Lights Were Off, and No Employees Were Present to Greet
the Public on September 7, 2023, the Clerk’s Office Was
Closed; Therefore, the Appellant Had Until the Next Day,
September 8, 2023, to File His Petition for Judicial Review ................9

A. Due Process Requires that Courts Remain Open Without

Unnecessary Barriers to the Public .....................................9

B. Section 1-3-67 Extends the Statute of Limitations in This

Case Because the Clerk’s Office Was Closed on the Last
Day to File the Petition for Judicial Review. .....................13

C. Denying Mr. Archie’s Appeal Would Give Court Clerks

Carte Blanche to Close Their Offices to the Public While
Claiming That Their Offices Are Still Open. .....................22

CONCLUSION ................................................................................................................ 23

CERTIFICATE OF FILING AND SERVICE ................................................................. 24

iv
 TABLE OF AUTHORITIES

Cases

Boddie v. Connecticut, 401 U.S. 371 (1971)............................................................................... 9

Dalton v. Cellular S., Inc., 20 So. 3d 1227 (Miss. 2009)......................................................... 20

Evans v. City of Jackson, 30 So.2d 315 (1947)........................................................................ 15

Grannis v. Ordean, 234 U.S. 385 (1914)................................................................................... 10

Joffe & Mankowitz v. Niagara Ins. Co., 81 A. 281 (1911) ............................................ passim

Jones v. Southern Insurance Co., 38 F. 19 (E. D. Ark., 1889) ........................................ passim

Jones v. Yates,- 360 So. 3d 240 (Miss. 2023) ......................................................................... 9, 21

Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................... 10

Parkman v. Miss. State Highway Com., 250 So. 2d 637 (Miss. 1971) ................................ 15

Parks v. Horton, 299 So. 3d 777 (Miss. 2020) ........................................................................... 9

Penix v. Am. Cent. Ins. Co., 63 So. 346 (1913) ................................................................ passim

State Farm Ins. Co. v. Gay, 526 So. 2d 534 (Miss. 1988) ....................................................... 15

Tennessee v. Lane, 541 U.S. 509 (2004) ...................................................................................... 9

Thomas v. Bolivar Cty., No. 2022-CA-00445-SCT, 2023 Miss. LEXIS 237 (Sep. 7, 2023) . 14

Warnick v. Natchez Cmty. Hosp., Inc., 904 So. 2d 1019 (Miss. 2004) ................................. 10

Statutes

Miss. Code 1942, § 1616 (Supp. 1970) ...................................................................................... 15

Miss. Code Ann. § 1-3-67 .................................................................................................. passim

Miss. Code Ann. § 23-15-921 .................................................................................................. 3, 6

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Miss. Code Ann. § 23-15-927 ............................................................................................ 3, 7, 14

Other Authorities

Emergency Administrative Order-27 (Jan. 27, 2022), available at https://

courts.ms.gov/appellatecourts/docket/sendPDF.php?f=700_573987.pdf&c=94457&a=N=2
(last accessed Feb. 4, 2024) .................................................................................................... 23

Rules

Miss. R. of Civ. P. 6 (a) ................................................................................................... 13, 14, 21

Constitutional Provisions

Miss. Const, Art. III, § 24 ........................................................................................................... 10

Miss. Const, Art. III, §25 ............................................................................................................ 10

Miss. Const, Art. XIV, § 268 ...................................................................................................... 10

U.S. Const, Amend XIV ........................................................................................................... 7, 9

vi
 STATEMENT OF THE ISSUE

Whether the ten-day statutory deadline to file an election contest was extended

when, on the tenth day of the period, a county-wide cyberattack occurred, the Circuit

Clerk’s office doors were locked, the Circuit Clerk’s office lights were off, and no Circuit

Clerk employees were present to greet the public.

1
 STATEMENT REGARDING ORAL ARGUMENT

Given that the question of when a Clerk’s office is closed for the purposes of

extending a statute of limitations is a question of first impression that bears upon how

clerks throughout the State will operate, the undersigned believes that oral arguments

will aid the Court in reaching its decision.

/s/ Matthew Wilson ____________________

Matthew Wilson (MS Bar #102344)

2
 STATEMENT OF THE CASE

-I. Relevant Procedural History

On August 8, 2023, the Hinds County Democratic Executive Committee

conducted a primary election for Hinds County Supervisor District 2. [R. at 10.]

After losing the primary, the Appellant, David L. Archie (“Mr. Archie”) timely filed

his petition with the Hinds County Democratic Executive Committee on August 28,

2023, pursuant to Miss. Code Ann. § 23-15-921. [R. at 10.]

Because the Committee did not meet in a timely fashion, Mr. Archie filed a

Petition for Judicial Review pursuant to Miss. Code Ann. § 23-15-927 on September 8,

2023. [R. at 9.] Therein, Mr. Archie names various parties as defendants, including

Appellee Anthony “Tony” Smith (“Mr. Smith”), who garnered the nomination on

August 8, 2023, Circuit Clerk Zack Wallace, the Hinds County Democratic Executive

Committee, and various members thereof, as well as other parties. [R. at 9.]

Over the course of several days, various defendants filed motions to dismiss.

Jacqueline Amos moved to dismiss on September 19, 2023, alleging that Mr. Archie

filed his Petition one day too late. [R. at 145-46.] Sandra McCall filed a similar motion

on September 24, 2023, alleging that Mr. Archie had filed too late and that the only

proper defendant is Mr. Smith. [R. at 156-57.] Circuit Clerk Zack Wallace reiterated

the preceding arguments of Mesdames Amos and McCall in his September 25, 2023,

motion to dismiss, adding further that the Petition for Judicial Review alleged no

specific wrongdoing by Mr. Wallace. [R. at 170-71.]

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 On September 26, 2023, the Circuit Court conducted a brief hearing on this

matter. However, the hearing adjourned until September 28, 2023. [R. at 231-45.] Mr.

Smith filed a Joinder concurring with the motion of Ms. Amos. [R. at 177.] Mr.

Archie’s current attorney, the undersigned counsel, also entered his formal

appearance. [R. at 179-80.]

On September 27, 2023, Ms. Amos supplemented her motion by alleging that

she, too, was not a proper party. [R. at 181.] 1

On September 27, 2023, Mr. Archie filed his Response to Motions to Dismiss for

Lack of Subject Matter Jurisdiction, attaching the affidavits of Mr. Archie and two other

witnesses, namely Kathy Sykes and John L. Taylor, Jr.. [R. at 185-94.] In his response,

Mr. Archie alleges that the Clerk’s office was closed on September 7, 2023, due to a

cyberattack, and as such, the provisions of Miss. Code Ann. § 1-3-67 added an

additional day to the limitations period. [R. at 189.] Mr. Archie also filed a Motion to

Drop Parties, seeking to drop Mr. Wallace and Mesdames Amos, McCall, and

Johnson. [R. at 205.]

On September 27, 2023, Ms. Amos filed a rebuttal memorandum. [R. at 195.]

Then, Mr. Wallace filed an affidavit in support of Ms. Amos’s rebuttal. [R. at 203.]

Toni Johnson also made a special appearance and joined in the Ms. Amos’s motion.

[R. at 201.]

1 Ms. Amos and Mr. Smith filed motions to quash and/or motions for sanctions pertaining to
Mr. Archie’s issuance of subpoenas. [R. at 164-65, 175-76.] The Court denied these motions. [R.
at 264.] No party has filed a notice of cross-appeal about this issue.
4
 On September 28, 2023, the Court resumed its hearing and ruled that Mr.

Archie had filed his Petition one day too late. [R. at 264.] On October 12, 2023, the

Court rendered its written judgment, which was filed with the papers of this Court

the next day. [R. at 209-10.] Mr. Archie perfected his appeal on October 18, 2023. [R.

at 211-12.]

After retaining jurisdiction, the Supreme Court permitted all parties other than

Messrs. Archie and Smith to be dismissed from the case.

II.
-- Relevant Facts

On August 8, 2023, Mr. Archie faced Mr. Smith in the Democratic Party

primary election for Hinds County Supervisor, District 2. [R. at 10.] According to the

official certification, Mr. Archie lost 4,687 to 2,810. [R. at 11-15.] On August 18, 2023,

Mr. Archie notified Mr. Wallace, the Circuit Clerk, of the items that he needed to

conduct an examination of the ballot boxes. [R. at 15.] Mr. Archie then conducted a

ballot box examination from August 23, 2023, through August 30, 2023; however, Mr.

Wallace did not provide all the information that Mr. Archie had requested. [R. at 15.]

Mr. Archie’s analysis determined the following: Voting machine end tapes,

affidavit ballots, military ballots, overseas ballots, express ballots, tally sheets, and

receiving-and-returning forms were missing, and ballot-box seals were not properly

affixed in all twenty-six of District 2’s precincts. [R. at 15-19.] Ballot boxes for

eighteen precincts did not contain voter register books (where voters sign their names

upon receiving a ballot). [R. at 16.] Ballot accounting forms were missing from the

ballot boxes of twenty-one precincts. [R. at 16.] Machine keys were missing from

5
ballot boxes in twenty-five precincts. [R. at 19.] Media bags were missing from

twenty-four precincts. [R. at 20.] Seals were not affixed to more than 12,000 unused

ballots in twenty-five precincts. [R. at 21.] Seal logs were absent in twenty precincts.

[R. at 21.] Twenty precincts had blue transport bags that were empty. [R. at 21.] In

addition, Mr. Archie was not provided with digital imaging of the ballots. Likewise,

because media sticks for all 107 county-wide precincts had been commingled in a bag

that had no label or seal and that was stored in a cubicle with open access, the chain

of custody for this data was compromised. [R. at 22.]

In view of these gross irregularities, the utter lack of ballot security, and the

radical departure from normal election practices, Mr. Archie believed that the

integrity of the election was in serious doubt. Therefore, on August 28, 2023, Mr.

Archie filed his petition to set aside the election results with the Hinds County

Democratic Executive Committee. [R. at 32-39.] That petition fell squarely within the

twenty-day deadline found in Miss. Code Ann. § 23-15-921.

On September 7, 2023, Hinds County government became victim to a

cyberattack, crippling all Hinds County computers. [R. at 187, 203.] While leaving it

to the discretion of each individual office, the Hinds County Administrator advised

that all county employees could go home at noon. [R. at 203.] The Circuit Clerk’s

office locked its doors sometime after noon. [R. at 203.] At 12:45 p.m., the lights were

out at both entrances (i.e., the marriage license/voter registration entrance and the

main entrance.). [R. at 192.] Neither Mr. Wallace nor any other employee of the

Circuit Clerk was present. [R. at 192.] In fact, a witness observed how a UPS delivery

6
man had come to the Clerk’s office but could not deliver packages because he could

not enter the Clerk’s office. [R. at 194.] Witnesses maintained continuous observation

of the Clerk’s office for several hours, during which time the office doors remained

locked, the lights remained off, and no employees ever arrived. [R. at 193.] Thus,

despite Mr. Wallace’s contention that the office was open and doing business [R. at

203], it was not open to rank-and-file members of the public such as delivery drivers.

Mr. Archie filed his Petition the next day. [R. at 203.] Various defendants

objected to the timeliness of his filing. [R. at 145-46; 156-57; 170-71.] After reviewing

the affidavits and hearing oral argument, the Special Judge granted their motions to

dismiss. [R. at 264.] Mr. Archie has appealed. [R. at 211.]

SUMMARY OF THE ARGUMENT

Access to the Courts is a fundamental right protected by the Due Process Clause

of the Fourteenth Amendment to the United States Constitution. People must have a

meaningful opportunity to be heard, free from obstacles to judicial access. This federal

constitutional right to judicial access is also enshrined in the Mississippi Constitution.

Thus, every person has a right under the Federal and State Constitutions to obtain

access to Mississippi Courts without barrier.

The timing for Mr. Archie’s Petition for Judicial Review is governed by Miss. Code

Ann. § 23-15-927, which states in pertinent part, “A petition for judicial review must be

filed within ten (10) days after any contest or complaint has been filed with an executive

committee.” Mr. Archie argues that the ten-day limitations period of § 23-15-927 cannot

expire on a day when the Clerk’s office is closed.

7
 Case law demonstrates that a Clerk’s office is closed when it is not open for

business. Furthermore, case law demonstrates that an office is closed for business

whenever its doors are locked and its lights are off – even for as little as a half-hour.

On September 7, 2023, following a countywide cyberattack, the Hinds County

Circuit Clerk locked his office doors at noon and turned out the lights. After that point,

no employees were present at the Clerk’s office. In fact, a delivery man was unable to

deliver a package at the Clerk’s office. Thus, pursuant to the precedents referenced

herein, the Clerk’s office was not open for business, but was closed.

Notwithstanding, the Circuit Clerk alleges in his affidavit that his office was still

open to conduct business on September 7, 2023. However, at the time the affidavit was

drafted, the Circuit Clerk was, himself, a defendant in this present action. Therefore, his

affidavit was naturally self-serving.

Based upon the holdings of the cases referenced herein, the locked doors, the

darkened rooms, and the absence of visible employees give rise to the inescapable

conclusion that the Clerk’s office was closed after noon on September 7, 2023. Thus, Mr.

Archie respectfully suggests that the Special Judge’s holding that the Clerk’s office was

open that day was manifestly against the weight of credible evidence.

A fortiori, since the Clerk’s office was closed for most of the day on September 7,

2023, then the deadline for Mr. Archie to file his Petition for Judicial Review would have

extended to the next day.

8
 ARGUMENT

I. Standard of Review

“In an election contest, the standard of review for questions of law is de novo.”

Jones v. Yates, 360 So. 3d 240, 242 (Miss. 2023) (quoting Parks v. Horton, 299 So. 3d 777,

779 (Miss. 2020) (internal quotation marks omitted) (“Jones I”). “The Mississippi

Supreme Court reviews a trial judge’s findings of fact for manifest error, including

whether the findings were the product of prejudice, bias, or fraud, or manifestly against

the weight of the credible evidence.” Id. (internal quotation mark omitted).

II. Because the Circuit Clerk’s Office Doors Were Locked, Its Lights Were Off,
and No Employees Were Present to Greet the Public on September 7, 2023, the
Clerk’s Office Was Closed; Therefore, the Appellant Had Until the Next Day,
September 8, 2023, to File His Petition for Judicial Review

A. Due Process Requires that Courts Remain Open Without Unnecessary

Barriers to the Public

Access to the Courts is a fundamental right protected by the Due Process Clause

of the Fourteenth Amendment to the United States Constitution. See Tennessee v. Lane,

541 U.S. 509, 523, 124 S. Ct. 1978, 1988 (2004) (“These rights include some, like the right

of access to the courts at issue in this case, that are protected by the Due Process Clause

of the Fourteenth Amendment.”). Along these lines, people must have a meaningful

opportunity to be heard, free from obstacles to judicial access. See id. (“The Due

Process Clause also requires the States to afford certain civil litigants a meaningful

opportunity to be heard by removing obstacles to their full participation in judicial

proceedings.”) (internal quotation marks omitted). Accord Boddie v. Connecticut, 401

U.S. 371, 379, (1971) (“In short, within the limits of practicability, a State must afford to

9
all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the

Due Process Clause.”) (internal citations and quotations omitted); Mathews v. Eldridge,

424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976) (“The fundamental

requirement of due process is the opportunity to be heard “at a meaningful time and in

a meaningful manner.”); Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783 (1914)

(“The fundamental requisite of due process of law is the opportunity to be heard.”);

Warnick v. Natchez Cmty. Hosp., Inc., 904 So. 2d 1019, 1022 (Miss. 2004) (“The

fundamental requirement of due process is the opportunity to be heard at a meaningful

time and in a meaningful manner.”) (internal citations and quotation marks omitted).

This federal constitutional right to judicial access is also enshrined in the

Mississippi Constitution. Article III, Section 24 states:

All courts shall be open; and every person for an injury done
him in his lands, goods, person, or reputation, shall have
remedy by due course of law, and right and justice shall be
administered without sale, denial, or delay.

Similarly, Article III, Section 25 states:

No person shall be debarred from prosecuting or defending

any civil cause for or against him or herself, before any
tribunal in the state, by him or herself, or counsel, or both.

Thus, every person has a right under the Mississippi Constitution to obtain access to the

Courts without hindrance.

Pursuant to Article XIV, Section 268 of the Mississippi Constitution, every office

holder in this State – including the Circuit Clerk of Hinds County – must swear to

uphold both the United States Constitution and the Mississippi Constitution before

taking office. Therefore, the Circuit Clerk had a duty under both the United States
10
Constitution and the Mississippi Constitution to provide citizens meaningful access to

the Courts pursuant to the holdings referenced, supra. Nevertheless, on September 7,

2023, the Circuit Clerk locked his office doors at noon, turned out the lights, and

excused his employees from working in the front office (or sent them home.) [R. at 192 -

94, 203.] Thus, for more than half a day, he turned the public away from his office.

If the Clerk locked his doors and turned off his lights because the office was in

fact closed, as Mr. Archie suggests, then that would have been perfectly understandable

since litigants would have enjoyed the benefit of the tolling provisions of Miss. Code

Ann. § 1-3-67, described infra. (As the adage goes, “no harm, no foul.”) On the other

hand, if the Clerk’s office was in fact open and doing business, as the Clerk attests in his

affidavit, then his decision to lock the doors, to turn out the lights, and to move

employees away from the front office (or to send them home) would have created an

unnecessary barrier to judicial access.

By his own admission, the Clerk did not have to send a single employee home

after the cyberattack. The Clerk attests in his Affidavit: “The County Administrator

advised that all employees …could go home at noon but deferred to individual elected

officials with regards to their respective offices.” [R. at 203 (emphasis added).] Thus,

the Circuit Clerk had the complete discretion to leave his office doors open, to leave his

office lights on, and to leave his employees at their respective posts. Instead, he

prevented the public from having access to his office.

On September 7, 2023, the Clerk’s Office was not reacting to a mass casualty

situation, a gas leak, or a fire that would have necessitated the complete evacuation of

11
the building. Nor did the Clerk suspend operations due to a biohazard (such as

COVID-19) where social distancing would have been necessary. Instead, the Clerk

impeded public access to his office because his employees had no computer access.

Of course, such lack of computer access was a universal condition of courts for

nearly 900 years, dating from the dawn of Anglo-Saxon jurisprudence in twelfth-

century England until the 1990s when personal computers became ubiquitous. One

case cited in this brief was written in 1889 when kerosene lamps were still used to light

courthouses. Back then, court clerks would file complaints without electricity, let alone

computers. Thus, for almost a millennium, courts dispensed justice, thereby creating

the framework for the common law that we now enjoy today, all without using

computers or the internet. Thus, if the Clerk’s office was open as he claims, he could

have directed one deputy clerk to mind the front office for a few hours since no

computer would have been required to receive paperwork from litigants.

Therefore, if the Clerk’s Office was, in fact, open for business, the cyberattack

provided no justification for him to impede public access to the Court by locking the

doors to the front office, by turning out the lights, and by sending his employees away.

Thus, if the Clerk’s office was, in fact, open and doing business on September 7, 2023,

then his actions would seem incompatible with the United States Constitution and the

Mississippi Constitution since he created unnecessary obstacles to judicial access.

Regardless of whether the Clerk’s office was open and doing business or if it was

closed, the Supreme Court should take action to address this situation so that clerks in

the future will understand their duties when future exigent situations happen.

12
 -B. Section 1-3-67 Extends the Statute of Limitations in This Case Because
the Clerk’s Office Was Closed on the Last Day to File the Petition for
Judicial Review.

The fundamental right to judicial access is sacrosanct. To ensure that it is not

compromised, the Legislature has enacted a system whereby closures of the Clerk’s

office would not prejudice litigants facing deadlines. Section 1-3-67 reads:

When process shall be required to be served or notice given

any number of days, the day of the act, event or default from
which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be
included unless it is a Saturday, a Sunday or a legal holiday,
or any other day when the courthouse or the clerk’s office is
in fact closed, whether with or without legal authority, in
which event the period runs until the end of the next day
which is not a Saturday, a Sunday, a legal holiday, or any
other day when the courthouse or the clerk’s office is
closed.…

Miss. Code. Ann. § 1-3-67 (Rev. 2019). This statutory framework is incorporated almost

verbatim in the Mississippi Rules of Civil Procedure, to-wit:

Computation. In computing any period of time prescribed

or allowed by these rules, by order of court, or by any
applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal
holiday, as defined by statute, or any other day when the
courthouse or the clerk’s office is in fact closed, whether
with or without legal authority, in which event the period
runs until the end of the next day which is not a Saturday, a
Sunday, a legal holiday, or any other day when the
courthouse or the clerk’s office is closed. …

Miss. R. of Civ. P. 6 (a).

13
 The timing for Mr. Archie’s Petition for Judicial Review is governed by Miss. Code

Ann. § 23-15-927, which states in pertinent part, “A petition for judicial review must be

filed within ten (10) days after any contest or complaint has been filed with an executive

committee.” Mr. Archie contends that § 23-15-927 falls under the “applicable statute”

category of Miss. R. of Civ. P. 6, as well as the rubric created by § 1-3-67. In other

words, Mr. Archie argues that the ten-day limitations period of § 23-15-927 cannot

expire on a Saturday, Sunday, legal holiday, or whenever the Clerk’s office is closed.

Support for this position is found in this Court’s recent opinion in Thomas v.

Bolivar Cty., No. 2022-CA-00445-SCT, 2023 Miss. LEXIS 237 (Sep. 7, 2023), which,

coincidentally, was decided on the very day that the Circuit Clerk locked the doors to

his office in the case at bar. In Thomas, this Court used § 1-3-67 in conjunction with

Miss. R. of Civ. P. 6 to extend the statute of limitations in a Mississippi Tort Claims Act

case. See 2023 Miss. LEXIS 237, at *9-10. There, the statute of limitation originally

expired on July 18, 2021, but because that fell on a Sunday, it was extended to July 19,

2021. Id. Thus, even though the statutory deadlines in a Mississippi Tort Claims Act

case are jurisdictional, this Court held that § 1-3-67 extended the statute of limitations.

See id. at *12-13.

Since § 1-3-67 applies to a jurisdictional deadline such as a Mississippi Tort

Claims Act case, it follows that § 1-3-67 must also apply to a jurisdictional deadline in

an election contest case. Therefore, this case turns on the determination of a single

existential question, viz.: Was the Circuit Clerk’s office closed on September 7, 2023?

14
 Mr. Archie invites this Court to examine the matter of Parkman v. Miss. State

Highway Com., 250 So. 2d 637 (Miss. 1971). In Parkman, the Mississippi State Highway

Commission instituted eminent domain proceedings against Parkman. Id. at 638.

Judgment was rendered on November 5, 1969, and the motion for new trial was denied

on the next day. Id. Pursuant to Section 1616 of the Mississippi Code 1942 Annotated

(Supp. 1970), Parkman had ten days to post an appeal bond. See Parkman, at 638. This

was a jurisdictional requirement. Id. The Courthouse was closed on Saturday,

November 15, 1969, and on Sunday, November 16, 1969. Id. Because “the clerk’s office

[was] closed and not open for business,” on the tenth day, this Court held that the

deadline for filing a bond should pass until the following Monday, November 17, 1969.

See id. at 639. “The contrary view,” the Parkman Court held, “is impractical and

unreasonable, and this Court will not assume that the legislature intended an

impractical and unreasonable result.” Id.

“Associated words take their meaning from one another under the doctrine of

‘noscitur a sociis’, the philosophy of which is that the meaning of a doubtful word may

be ascertained by reference to words associated with it.” State Farm Ins. Co. v. Gay,

526 So. 2d 534, 537 (Miss. 1988) (citing Evans v. City of Jackson, 202 Miss. 9, 30 So.2d

315 (1947)). With this rule in mind, Mr. Archie would direct the Court’s attention to

how the Parkman Court associated the clerk’s office being closed with the clerk’s office

not being open for business. See Parkman, at 639. Using the noscitur a sociis maxim to

analyze Parkman, we may glean that an office is closed whenever it is not open for

business. This begs the question as to what “open for business” means.

15
 In 1913, this Court addressed the concept of being “open for business” under the

rubric of an insurance policy. In 1911, A. H. Borah was conducting business in

Greenwood, Mississippi. Penix v. Am. Cent. Ins. Co., 106 Miss. 145, 162, 63 So. 346, 347

(1913). Borah had an insurance policy which required that he keep his ledgers locked in

an iron safe when the store was not open for business. See id. Borah had an employee,

Lyell, who slept and cooked his meals in the rear of the store. Id. The memorandum

book that kept a daily record of sales was not stored in a fireproof safe, but under

Lyell’s pillow. Id. On the night in question, shortly before 6 p.m., Lyell lit an oil stove

and placed some food on it. Id. He then closed, locked, and left the store for about

forty or fifty minutes. Id. He discovered the fire when he returned; by that time, he

could do nothing to stop it. Id. The memorandum book burned. Id. at 398.

Because Lyell had not placed the memorandum book in an iron safe, the

insurance company declined to pay Borah’s claim. See id. at 397. Borah contended,

inter alia, that the store was open for business within the meaning of the policy. See id.

The Mississippi Supreme Court disagreed, holding:

There is no merit in the contention of counsel for appellant

that at the time the store was burned it was actually open for
business within the meaning of the policy. The physical fact
is that it was closed, the doors locked, and Lyell had gone
to another portion of the city, so that it was physically
impossible for any business to have been transacted
within the store while he was away. It may be that a
temporary absence from the store of all persons in charge
thereof may be of such a character as not to violate this
clause of the policy, as was held in Jones v. Southern
Insurance Co. (C. C.), 38 F. 19, as to which we express no
opinion; but such is not the case here. Joffe et al. v. Niagara
Fire Insurance Co., 116 Md. 155, 81 A. 281, Ann. Cas. 1913C
1217. Lyell not only closed and locked the store, but
16
 deliberately left the immediate vicinity thereof, and was so
situated for the time being that it was impossible for him to
preserve the books when the store burned; … that Lyell was
nearby, and might have been able to save the book in the
event of a fire, is immaterial, for that is not the protection
intended to be secured to the insurance company by the
clause in question.

Penix, 63 So. at 348-49 (emphasis added).

From the statement above, the Penix Court cited favorably to an 1889 Federal

Court decision from Arkansas, suggesting that in some cases a temporary absence could

be an exception to the “open for business” requirement in an iron-safe clause. See id.

At first blush, such a suggestion might tend to undermine Mr. Archie’s contention that

the Clerk’s office was in fact closed. However, upon further review, this Arkansas case

buttresses Mr. Archie’s contention even further:

What has been said disposes of the defense that the store
was “not actually open for business” at the time of the fire.
The fact is found that it was so open. The circumstance that
the door was locked, so that customers had to knock for
admission, has no significance in the light of the evidence.
When they knocked they were admitted and waited upon. A
store is “actually open for business” when it is lighted up
and the merchant or his clerk is there ready, able, and
desirous to sell goods, or do anything else that constitutes
a part of the work or labor of conducting the mercantile
business. A store is as much “open for business” while the
merchant is waiting for customers, during his customary
business hours, as it is when the customers are present.

Jones v. Southern Insurance Co., 38 F. 19, 23 (E. D. Ark., 1889), 1889 U.S. App. LEXIS

2777, *6-7 (emphasis added) (referred to hereinafter as “Jones II”). Thus, according to

the persuasive authority of the Jones II Court, which was cited within the binding

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authority of the Penix Court, a locked office is not actually open for business if its lights

are off or when its clerks are not ready, able, or desirous to perform their duties. See id.

The Penix Court also cites the case of Joffe & Mankowitz v. Niagara Ins. Co., 81

A. 281 (1911). Therein, Joffe and Mankowitz were engaged in a millinery business in

Baltimore City, Maryland. Id. On January 23, 1909, the only two people who were

working locked the store and went to lunch at noon. Id. In less than half an hour, the

store caught fire. Id. Like the situations in Penix and Jones II, supra, Joffe and

Mankowitz had an insurance policy with an iron-safe clause that required the insureds

to put their accounting ledgers in fireproof safes when they were not open for business.

See id. at 281-82. The Maryland Court of Appeals held that the iron-safe clause was

violated when the employees left for lunch without locking their accounting ledgers in

the safe. “It cannot be correctly said that a store is ‘actually open for business,’ when it

is actually locked up, with no one in it, for half an hour, and no one there to attend to

business or protect the property.” Id. at 283.

Mr. Archie now invites the Court’s attention to the affidavit of Kathy Sykes in the

case at bar. According to Ms. Sykes, when she went to the Clerk’s office at 12:45 p.m. on

September 7, 2023, the doors to both entrances of the Circuit Clerk’s office were locked,

the lights were off, and neither the Circuit Clerk nor any of his employees were present.

[R. at 192.] This accords with the sworn statement of John Taylor, Jr., who made the

same observations, noting further that “a UPS delivery man came to deliver a package

while I was there and he could not deliver the packages because he could not get inside

Hinds County Circuit Clerk Office.” [R. at 192.] Thus, like the millinery business in

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Joffe & Markowitz, the Clerk’s Office was not “actually open for business” because it

was “actually locked up, with no one in it.” See id. And like the merchants in Jones II,

the Clerk’s Office was not “actually open for business” because the office was not

“lighted up” and because no one was “ready, able, and desirous” to serve the citizens of

Hinds County. See Jones II, 38 F. 19 at 23.

The Circuit Clerk admits that the office was locked at noon on September 7

because of the cyberattack. [R. at 203.] The Clerk does not say where he was – or, for

that matter, where any of his deputy clerks were – after the doors were locked. [R. at

203-04.] Thus, he does not deny the assertions of Ms. Sykes and Messrs. Taylor and

Archie that the public entries were locked, the office lights were off, or that no

employee was present. In fact, one may infer from his affidavit that no one was present

in his office at all.

“Supervisor Archie,” the Circuit Clerk attests, “has my mobile phone number

and has called me on the number from time-to-time … He did not call me on

September 7, 2023.” [R. at 204.] Mr. Archie finds it telling that the Circuit Clerk

describes how Mr. Archie did not contact him on his mobile phone – but that he omits

whether Mr. Archie had called the Clerk’s office phone.

Expressio unius est exclusio alterius (i.e., “the expression of one thing is the

exclusion of the other”). If the Circuit Clerk had been in his office on the afternoon of

September 7, Mr. Archie would not have needed to contact him on his mobile phone.

He could have simply telephoned the Clerk’s landline office phone. Thus, the question

of whether Mr. Archie had the Clerk’s mobile phone number would have been

19
irrelevant. Moreover, if the Clerk or members of his staff were at the office doing

business that afternoon, they would have known if Mr. Archie had tried calling them on

the office phone. The Clerk or one of his deputies could have attested either that, yes,

Mr. Archie had called, or that, no, he had not called. So, by virtue of the Clerk’s

omission of any reference to the office phone, we may infer the Circuit Clerk had no

knowledge of Mr. Archie’s attempts (or lack thereof) to contact his office. This, in turn,

would mean that neither the Clerk nor any of his staff were present at the office when

the office was supposedly open for business. This inference is reasonable given that the

Clerk did send employees home that afternoon. [R. at 253.]

The Circuit Clerk does not deny any of the factual allegations referenced in Mr.

Archie’s supporting affidavits. [R. at 203-04, 252.] However, he does allege in his

affidavit that his office was still open to conduct business. [R. at 203.] At the time his

affidavit was drafted, the Circuit Clerk was, himself, a defendant in this present action.

Therefore, his affidavit was naturally self-serving since he was trying to get a case

dismissed for which he was still a party. Beyond this, the Clerk’s assertion that his

office was open to conduct business is just as conclusory as anything the insureds had

said in Penix, Jones II, and Joffe & Mankowitz. Cf. Dalton v. Cellular S., Inc., 20 So. 3d

1227, 1233-34 (Miss. 2009) (“A conclusory, self-serving affidavit, unsupported by

material facts relevant to the proposition at issue, is insufficient as a basis to grant

summary judgment.”) Nevertheless, the insureds in these cases were found to have

been closed for business despite their protestations.

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 Based upon the holdings of Penix, Jones II, and Joffe & Mankowitz, supra, the

locked doors, the darkened rooms, and the absence of visible employees ready, able and

desirous to serve the citizenry give rise to the inescapable conclusion that the Clerk’s

office was closed after 12:00 p.m. on September 7, 2023. Thus, Mr. Archie respectfully

suggests that the Special Judge’s determination that the Clerk’s office was open that day

was manifestly against the weight of credible evidence and the precedents of this Court.

Cf. Jones I, 360 So. 3d at 242.

Mr. Archie respectfully contends that if the Circuit Clerk’s office would have

been closed for business under the rubric of iron-safe clauses found in insurance

contracts from over a century ago, then the Circuit Clerk’s office must have been closed

all-the-more under the more stringent analysis of whether the fundamental

constitutional right of judicial access is being infringed.

Restated, if locking the doors and turning off the lights was considered the

closing of a business within the meaning of an insurance contract, then locking the

doors and turning off the lights of the Clerk’s offices should be considered the closing of

the office in the case at bar – particularly since access to courts is a fundamental

constitutional right, whereas owing an insurance policy is not.

A fortiori, since the Clerk’s office was closed for most of the day on September 7,

2023, the filing deadline for Mr. Archie’s Petition for Judicial Review extended to the next

day in view of the tolling provisions of § 1-3-67 and Miss. R. of Civ. P. 6(a).

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 -C. Denying Mr. Archie’s Appeal Would Give Court Clerks Carte Blanche to
Close Their Offices to the Public While Claiming That Their Offices Are
Still Open.

Mr. Archie respectfully submits that this case transcends election law because it

will provide guidance to court clerks throughout this State for generations to come. If

this Court were to agree with Mr. Smith that the Clerk’s Office was not closed on

September 7, 2023 – even though both entrances to the Clerk’s Office was locked, the

office lights were off, and no employee was present to even accept deliveries – then

court clerks will feel emboldened to lock their doors, turn off the lights, and send

employees home at any time, knowing full well that they could still claim that their

offices were open. Mr. Archie respectfully submits that this would run afoul of not only

the letter of the law, but the very spirit of due process.

The Circuit Clerk emphasized that Mr. Archie had his mobile phone number

and, therefore, could have called him at any time. That makes sense given that Mr.

Archie was a county supervisor. But what if the Appellant had not been Mr. Archie?

What if the Appellant had been a regular citizen, with no rank or stature, who needed

to file a pro-se complaint? Would such an “average Joe” have had access to the Circuit

Clerk’s cell phone number?

Admittedly, these rhetorical questions are unusual for appellate briefs.

However, these questions are designed to show the Court how this case is the perfect

vehicle to offer guidance to court clerks about how and when their offices may be

closed when exigencies occur.

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 Even with the backdrop of a worldwide pandemic, this Court demanded that

access to justice remain unhindered pursuant to the State Constitution. Cf. Emergency

Administrative Order-27 (Jan. 27, 2022), available at https://courts.ms.gov/appellatecourts/

docket/sendPDF.php?f=700_573987.pdf&c=94457&a=N=2 (last accessed Feb. 4, 2024). To

this end, Mr. Archie respectfully suggests that granting his appeal will buttress this

Court’s commitment to upholding access to justice – even in times of emergency.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, the Appellant, DAVID L. ARCHIE,

respectfully requests that this Court reverse the Final Judgment of the Special Judge in

the case at bar and remand this matter for a review on the merits of the Appellant’s

Petition for Judicial Review.

The Appellant prays for general relief.

Respectfully submitted, this the 5th day of February 2024,

/s/ Matthew Wilson_____________________

Matthew Wilson (MS Bar 102344)
2218-B West Main Street, Tupelo, MS 38801
T: (662) 260-6544 / F: (662) 546-4893
lawyermatt@betteraskmatt.com
Attorney of Record for the Appellant

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 CERTIFICATE OF FILING AND SERVICE

I, Matthew Wilson, counsel for the Appellant, do hereby certify that I have on

this date filed via the MEC electronic filing system a true and correct copy of this

Appellant’s Brief along with the Record Excerpt. Notice thereof was delivered by the

MEC system to the Hon. Warren Martin (attywarrenmartin@gmail.com), counsel for the

Appellee.

A copy of this brief has also been delivered via U.S. Mail to the Judge, whose

order forms the subject of this appeal:

The Hon. Barry Ford

c/o the Hinds County Circuit Court
P.O. Box 327
Jackson, MS 39205

Respectfully submitted, this the 5th day of February 2024,

/s/ Matthew Wilson_____________________

Matthew Wilson (MS Bar #102344)

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