The Mississippi State Democratic Party v. Bob Hickingbottom

• Court: Mississippi Supreme Court
• Decided: June 8, 2023
• Docket: 2023-EC-00611-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2023-EC-00611-SCT

THE MISSISSIPPI STATE DEMOCRATIC PARTY

v.

BOB HICKINGBOTTOM

DATE OF JUDGMENT: 05/26/2023 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. TRIAL COURT ATTORNEYS: JOHN R. REEVES GERALD A. MUMFORD COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GERALD A. MUMFORD ATTORNEY FOR APPELLEE: JOHN R. REEVES NATURE OF THE CASE: CIVIL - ELECTION CONTEST DISPOSITION: REVERSED AND RENDERED - 06/08/2023 MOTION FOR REHEARING FILED:

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. This case tasks the Court with determining whether a petition for judicial review was

time barred. Because Bob Hickingbottom appealed the decision of the Democratic Party

Executive Committee (DEC) to disqualify him as a candidate for governor pursuant to

Mississippi Code Section 23-15-961 (Rev. 2018)—which provides the exclusive procedure

for such an appeal—this Court finds that Hickingbottom’s petition for judicial review was

untimely filed and, therefore, his petition for judicial review was time barred.

FACTS AND PROCEDURAL HISTORY

¶2. On February 1, 2023, Hickingbottom filed a Qualifying Statement of Intent, declaring his candidacy to be the Democratic Party’s nominee for governor. On February 10, 2023, Jim

Newman sent a letter to the DEC. The letter challenged Hickingbottom’s qualifications as

a candidate for the office of governor. Specifically, Newman’s letter claimed that when

running on the Constitution Party ticket in the 2019 gubernatorial election, Hickingbottom

failed to file a statement of organization in violation of Mississippi Code Section 23-15-803

(Rev. 2018) and a statement of economic interest in violation of Mississippi Code Section

25-4-25 (Rev. 2018). On February 13, 2023, Tyree Irving, the chairman of the DEC, emailed

Hickingbottom to notify him of Newman’s letter and to inform him that a hearing via Zoom

would be conducted on February 14, 2023, to address Newman’s challenges. Then on

February 14, 2023, the hearing was rescheduled to February 16, 2023, “to consider the

challenges to the qualifications of several of the candidates running.”

¶3. At the Zoom hearing on February 16, 2023, Hickingbottom was present and was given

an opportunity to be heard by the DEC and to rebut Newman’s challenges to his

qualifications. On February 17, 2023, Andre Wagner, the executive director of the DEC,

emailed Hickingbottom to notify him that the DEC had voted and decided not to certify

Hickingbottom because “[s]adly, [he] did not meet the statutory requirements[.]”

¶4. On March 15, 2023, counsel for Hickingbottom sent a letter to the DEC, addressed

to Chairman Irving. The letter requested that the DEC reconsider its decision to disqualify

Hickingbottom. In the alternative, Hickingbottom’s counsel requested that a hearing be

conducted pursuant to Mississippi Code Section 23-15-299 (Supp. 2022). Finally,

2 Hickingbottom’s counsel stated that if the DEC “fail[ed] to take appropriate action to certify

Bob Hickingbottom as a candidate . . . , a Petition for Judicial Review will be filed in the

Circuit Court of Hinds County[.]” True to his word, Hickingbottom filed a Petition to Contest

and Overturn the Mississippi State Democratic Executive Committee’s Disqualification of

Bob Hickingbottom for the Candidacy of Governor on May 3, 2023. The petition was filed

“pursuant to Miss. Code Ann. § 23-15-961 and 23-15-299.” Additionally, Hickingbottom

posted a cost bond of $300 on May 5, 2023.

¶5. On May 8, 2023, the DEC filed a motion for summary judgment. On May 10, 2023,

an Agreed Order Setting Trial for May 26, 2023, was entered by the special judge appointed

to oversee the case pursuant to Mississippi Code Section 23-15-961(5) (Rev. 2018). The

DEC filed a response and answer to Hickingbottom’s petition and a motion for judgment on

the pleadings or, in the alternative, summary judgment based on the doctrine of laches. On

May 26, 2023, the hearing was conducted on all of the motions, and the court ordered that

Hickingbottom’s name was to be placed on the ballot as a qualified candidate. Specifically,

the court found that (1) the challenges to Hickingbottom’s qualifications were not grounds

for disqualification, (2) Newman’s petition was facially invalid because it did not challenge

Hickingbottom’s qualifications as enumerated in article 5 of the Mississippi Constitution, (3)

the DEC’s notice to Hickingbottom that he was disqualified was “deficient in due process,

invalid and improper,” and (4) Hickingbottom’s delay in filing a petition for judicial review

did not outweigh his “right of ballot access in this case[.]” The court also noted that there was

3 no factual dispute, only disputes concerning the law and its application. The DEC filed this

appeal of the order to place Hickingbottom on the ballot.

STANDARD OF REVIEW

¶6. “[I]n a candidate qualification challenge, the standard of review for questions of law

is de novo.” Simmons v. Town of Goodman, 346 So. 3d 847, 850 (Miss. 2022) (internal

quotation marks omitted) (quoting Hale v. State Democratic Exec. Comm., 168 So. 3d 946,

951 (Miss. 2015)). “Matters of statutory interpretation also are reviewed by this Court using

a de novo standard.” Chandler v. McKee, 202 So. 3d 1269, 1271 (Miss. 2016) (citing

Wallace v. Town of Raleigh, 815 So. 2d 1203, 1206 (Miss. 2002)).

DISCUSSION

¶7. The DEC raises several issues on appeal. We only address the DEC’s issue regarding

the timeliness of Hickingbottom’s petition for judicial review since it is dispositive. Section

23-15-961 exclusively governs the procedure for challenging the qualifications of a candidate

in a political party’s primary election prior to the primary election. In order to challenge a

candidate’s qualifications, an individual must file a petition that specifically sets forth the

grounds for the challenge(s) within ten days after the qualifying deadline. Miss. Code Ann.

§ 23-15-961(1) (Rev. 2018). Once that petition is received by the political party’s executive

committee, it has ten days to rule on it or the petition is deemed denied. Miss. Code Ann. §

23-15-961(2)-(3) (Rev. 2018). The executive committee must give at least two days’ notice

to the petitioner and the contested candidate of the time and place of the hearing on the

4 petition. Miss. Code Ann. § 23-15-961(2).

¶8. Following the executive committee’s ruling—or lack thereof—on the petition, “[a]ny

party aggrieved by the action or inaction . . . may file a petition for judicial review in the

circuit court[.]” Miss. Code Ann. § 23-15-961(4) (Rev. 2018). “The petition [for judicial

review] must be filed no later than fifteen (15) days after the date the petition was originally

filed with the appropriate executive committee.” Id. (emphasis added). When filing for

judicial review, the aggrieved party shall post a cost bond of $300. Id. Once the petition has

been filed and the cost bond posted, a special judge is appointed by the Chief Justice of the

Supreme Court to oversee the case in a de novo review, without a jury. Miss. Code Ann. §

23-15-961(5) (Rev. 2018). If either party wishes to appeal the order of the specially

appointed judge deciding whether to place the candidate on the ballot, they must file their

appeal to this Court within three days of the entry of the order. Miss. Code Ann. § 23-15-

961(6) (Rev. 2018). Finally, Section 23-15-961(7) mandates that this procedure “shall be the

sole and only manner in which the qualifications of a candidate . . . may be challenged prior

to the time of his [or her] nomination or election.” Miss. Code Ann. § 23-15-961(7) (Rev.

2018).

¶9. Hickingbottom filed his statement of intent to run for governor on February 1, 2023,

the final day to qualify for the Democratic primary election to be held on August 8, 2023.

Nine days later, on February 10, 2023, Jim Newman timely filed his petition with the DEC

challenging Hickingbottom’s qualifications to run as a candidate in the primary in accordance

5 with Section 23-15-961(1). On February 14, 2023, the DEC timely notified Hickingbottom

via email of a hearing on Newman’s petition to take place two days later, on February 16,

2023. At the hearing, Hickingbottom was present and was given an opportunity to defend his

qualifications against Newman’s challenges. On February 17, 2023, seven days after

Newman’s petition was filed, Hickingbottom was informed by the DEC that it had voted not

to certify him because he did not meet the statutory requirements. On May 3, 2023—eighty-

two days after Newman’s original petition was filed with the DEC and seventy-five days

after the DEC informed Hickingbottom that he was not certified as a

candidate—Hickingbottom filed his petition for judicial review in the Hinds County Circuit

Court, “pursuant to Miss. Code Ann. § 23-15-961 and 23-15-299.” Hickingbottom posted a

$300 cost bond along with his petition in accordance with Section 23-15-961(4).

Furthermore, Hickingbottom’s petition to the circuit court stated that “[t]his Court has

jurisdiction to hear this case and venue is proper in the First Judicial District of Hinds County

Mississippi, pursuant to Miss. Code Ann. § 23-15-961 and 23-15-299.”

¶10. “Election contests are a statutory remedy.” Andreacchio v. Coleman, 322 So. 3d 441,

445 (Miss. 2021) (citing Pradat v. Ramsey, 47 Miss. 24, 32 (1872)). Section 23-15-961

provides the sole procedure and remedy for challenging a candidate’s qualifications prior to

a primary election, for appealing an unfavorable action or inaction by the political party’s

executive committee to the circuit court and, finally, for appealing the circuit court’s order

to this Court. Miss. Code Ann. § 23-15-961(7). Hickingbottom filed his petition for judicial

6 review in the circuit court specifically under Section 23-15-961. While Hickingbottom

complied with the cost bond portion of Section 23-15-961(4), he blatantly failed to comply

with the timeliness mandate contained in Section 23-15-961(4) and further failed to give

either this Court or the circuit court any grounds whatsoever to possibly warrant an excuse

for his excessive untimeliness.

¶11. To escape the mandated fifteen-day time period under Section 23-15-961(4),

Hickingbottom argues that the DEC made its decision not to certify him pursuant to Section

23-15-299(7)(a)-(b) rather than Section 23-15-961, thus freeing him from any time constraint

within which to file his petition to the circuit court. Section 23-15-299(7)(a) details the

procedure for a political party’s executive committee or the secretary of state to certify

candidates’ qualifications to hold office. If the executive committee or the secretary of state

determines that the candidate is not qualified to hold the office that they seek, then it must

offer the candidate three days’ notice of a hearing to address his or her qualifications and an

opportunity to be heard. Miss. Code Ann. § 23-15-299(7)(b).

¶12. The certification procedure in Mississippi Code Section 23-15-299(7)(a)-(b) (Supp.

2022) is the standard for certifying candidates prior to an election when no challenge is made

by a third party to a candidate’s qualifications. But it is clear that the DEC determined not

to certify Hickingbottom following the receipt of Newman’s petition and a hearing on the

same. Section 23-15-961 lays out the exclusive procedure for when a candidate’s

qualifications are challenged by a third party. Newman and the DEC complied with the

7 exclusive Section 23-15-961 procedure for challenging a candidate’s qualifications.

Newman’s petition was timely filed, Hickingbottom was timely noticed of a hearing and the

DEC timely ruled on Newman’s petition. See Miss. Code Ann. § 23-15-961(1)-(2). This

Court finds that Hickingbottom’s qualifications were challenged by petition pursuant to

Section 23-15-961 and that, subsequently, Hickingbottom was disqualified as a candidate by

the DEC due to the challenges raised in the petition. Therefore, Hickingbottom, as a “party

aggrieved by the action . . . of the appropriate executive committee[,]” was required to file

his petition for judicial review “no later than fifteen days after” Newman’s petition was filed

with the DEC. Miss. Code Ann. § 23-15-961(4). Because Hickingbottom failed to file his

petition for judicial review prior to the expiration of the fifteen-day deadline provided under

Section 23-15-961, this Court finds that it was time barred. See Gourlay v. Williams, 874 So.

2d 987, 988 (Miss. 2004) (affirming the trial court’s finding that Gourlay’s failure to file his

petition challenging a candidate’s qualifications within the ten-day time limit specified in

Section 23-15-961(1) meant his petition was time barred).

¶13. Even if the DEC had not received Newman’s petition and chose not to certify

Hickingbottom under the Section 23-15-299 procedure, Section 23-15-299 gives no remedy

or procedure to petition the court for judicial review of the executive committee’s decision;

Section 23-15-961, by contrast, details a step-by-step appeal process. As stated previously,

election contests provide statutory remedies. Andreacchio, 322 So. 3d at 445. Since Section

23-15-299 gives no remedy to Hickingbottom, either he is wholly without one or he may

8 follow the review procedure laid out in Section 23-15-961. Hickingbottom provides no

alternative methods—and this Court has found no alternative methods—for appealing a

decision of a political party’s executive committee other than the procedure laid out in

Section 23-15-961, whether the candidate is disqualified directly by the executive committee

under Section 23-15-299 or by a third party’s challenge under Section 23-15-961. See

Cameron v. Miss. Republican Party, 890 So. 2d 836, 838 (Miss. 2004) (candidate

disqualified by the executive committee under Section 23-15-299 appealed the decision

pursuant to Section 23-15-961(4)); Montgomery v. Lowndes Cnty. Democratic Exec.

Comm., 969 So. 2d 1, 2 (Miss. 2007) (candidate disqualified by the executive committee

sought judicial review pursuant to Section 23-15-961). In fact, in every case in which this

Court addressed judicial review of a decision by political party’s executive committee to

qualify or disqualify potential candidates, the procedure of Section 23-15-961 was followed

or no procedure was mentioned. See Grist v. Farese, 860 So. 2d 1182, 1183 (Miss. 2003);

Meredith v. Clarksdale Democratic Exec. Comm., 340 So. 3d 315, 318-19 (Miss. 2022);

Edwards v. Stevens, 963 So. 2d 1108, 1108-09 (Miss. 2007); Garner v. Miss. Democratic

Exec. Comm., 956 So. 2d 906, 908 (Miss. 2007); Young v. Stevens, 968 So. 2d 1260, 1261

(Miss. 2007); Hale, 168 So. 3d at 949-50.

¶14. Hickingbottom further argues that though he did file his petition pursuant to Section

23-15-961, the fifteen-day time limit is inapplicable to this particular proceeding under Basil

v. Browning, 175 So. 3d 1289, 1292 (Miss. 2015). In Basil, when construing Section 23-15-

9 963, this Court held that since Browning was not challenging the qualifications of another

candidate and was instead challenging his own disqualification by the Union County Election

Commission, “the provisions of Section 23-15-963 [did] not apply[.]” Id. Hickingbottom

argues that since the relevant language in Section 23-1-5-963 is identical to the relevant

language in Section 23-15-961, this Court should hold the same—that Section 23-15-961 is

not the exclusive procedure for a candidate appealing his or her own disqualification.

Notably, however, Browning was not disqualified following a petition challenging his

qualifications by a third party, and he did not file the appeal of his disqualification pursuant

to Section 23-15-963. Furthermore, the timeliness of Browning’s petition for judicial review

was not in question. Id. The decision of this Court in Basil is inapposite to the present case.

¶15. A candidate who has been disqualified pursuant to a particular statute that specifically

provides for an appeal process of that disqualification and who appeals pursuant to that

particular statute must abide by the time limit mandated within that statute. This case presents

this very scenario: the challenge to Hickingbottom’s qualifications was made under Section

23-15-961, and Hickingbottom appealed the DEC’s decision to disqualify him based on that

challenge under Section 23-15-961. Therefore, we hold that Hickingbottom was required to

meet the statutory time limit set out in Section 23-15-961 for his petition for judicial review,

and his failure to do so means his petition was time barred.

CONCLUSION

¶16. This Court holds that Hickingbottom’s qualifications were challenged by petition

10 pursuant to Section 23-15-961. Under the statutorily provided appeal process in Section 23-1-

5-961, Hickingbottom failed to timely file his petition for judicial review, and therefore his

petition was time barred. This Court’s finding that Hickingbottom’s petition was untimely

filed is dispositive, and we decline to address the other issues raised by the DEC.

Accordingly, we reverse the circuit court’s judgment and render judgment finally dismissing

with prejudice Hickingbottom’s petition for judicial review as untimely filed. This Court also

finds that, in light of the impending ballot deadlines for the August 8, 2023 primary election,

it is necessary that our decision be final. Therefore, under Mississippi Rule of Appellate

Procedure 2(c), we find that no motion for rehearing will be allowed and that this opinion

shall be deemed final in all respects. The Court finds that the mandate in this matter shall

issue immediately.

¶17. The Clerk of this Court is directed to send copies of this opinion to the Democratic

Party Executive Committee and to the secretary of state.

¶18. REVERSED AND RENDERED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM AND ISHEE, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.