IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CA-01172-SCT

IN RE: RALPH HIGGINBOTHAM

DATE OF JUDGMENT: 10/05/93

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: WILBUR O. COLOM

DEWITT T. HICKS

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: ROBERT E. SANDERS

JOHN C. HENEGAN

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 6/25/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/16/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. Today, we are confronted with the question whether our circuit courts have jurisdiction to

address claims of procedural irregularity in the implementation of our statutory scheme for the

removal of certain officials and whether that scheme, as it applies to "judicial officers" offends the

constitutional doctrine of separation of powers. We conclude that the circuit court correctly declined

to exercise jurisdiction at the time and in the manner requested and that the statutory scheme does

not violate the separation of powers provision of our constitution. Accordingly we affirm the

judgment of the circuit court dismissing the official's action.

I.

¶2. Ralph Higginbotham appeals from of a decision by the Hinds County Circuit Court dissolving a

temporary restraining order and dismissing his complaint for lack of subject matter jurisdiction.

¶3. On September 28, 1993 Higginbotham, filed a complaint against Governor Kirk Fordice,

Lieutenant Governor Eddie Briggs, the three chancellors selected as a Removal Council and the
Circuit Clerk and County Registrar for Noxubee County in the Circuit Court of Hinds County.

Higginbotham claimed that his constitutional rights were violated by an order entered by the

Lieutenant Governor, acting on behalf of Governor Fordice, convening a Removal Council for the

purpose of considering whether there was a substantial basis for removing Higginbotham from his

position as Supervisor of Noxubee County. Higginbotham, in his complaint as later amended ore

tenus, prayed for recall of the proclamation entered by the Governor, and for a permanent stay

ordering the Governor to refrain from convening a removal council. Higginbotham argued that the

removal statute was unconstitutional and violated the separation of powers doctrine. He further

argued that certain procedural steps in the statutory scheme had not been complied with and that he

had been denied due process by the failure of the office of the governor to fully consider his

objections to the certification of sufficient signatures to require removal.

¶4. In addition to the complaint, Higginbotham filed a motion for a temporary restraining order to

restrain the execution of the Governor's order convening the removal council. The circuit court

granted the motion and issued a temporary restraining order. The Governor filed a motion to dissolve

the temporary restraining order and dismiss the complaint. Similar motions were also entered by

Johnny Kinard and Syble Wesley, affected registered electors who intervened in the proceeding.

¶5. Miss. Code Ann.§ 25-5-3 empowers the Governor to remove county officers pursuant to the

provisions of the removal statutory scheme. Miss. Code Ann. § 25-5-3 et seq. (1972). In accord with

that scheme, petitions were filed requesting that Higginbotham be removed from office. These

petitions alleged that Higginbotham failed to properly conduct the duties of his office. The petitions

stated their purpose on the first page and each signature page was dated and contained at the bottom

thereof the admonition that signatories could not withdraw their signatures as prescribed by statute.

Miss. Code Ann. §§ 25-5-9, -11. Each petition was verified by a qualified elector certifying that the

each signer was believed to be a voter; that the date was accurate pursuant to statutory requirements;

and that each had been informed of the prohibition against withdrawing signatures. Miss. Code Ann.

§ 25-5-13.

¶6. On July 22, 1993, the petitions were filed with the circuit clerk. At some point thereafter,

Higginbotham, apparently, lodged with the circuit clerk materials contesting the validity of the

petitions.

¶7. On July 29, 1993, Carl Mickens, Noxubee County Circuit Clerk and Registrar certified to the

governor that he had checked the petitions pursuant to Miss. Code Ann. § 25-5-15 and that it

contained the names of 39 electors and that there were 1908 electors registered in "the county (or

beat, as the case may be)." Mickens said in a cover letter that he certified only the signatures

contained on the first pages of the petitions where the language showing the intent of the petition was

contained.

¶8. Mickens also enclosed materials submitted to him by Higginbotham. The record is not quite clear

as to all that was enclosed but material in the record reflects affidavits from signatories contradicting

the certificates that signatories were told that they could not remove their names or that they did not

knowingly or willfully sign a petition for the removal of Higginbotham from office. It also designated

signatures that appeared to be duplicates, other than those of qualified electors, or forged.

¶9. On August 11, 1993, the governor returned Mickens' submission "unfiled" under a letter pointing
out that the statutory scheme in question did not allow Mickens to exclude signatures based upon his

assessment of the regularity of the petition and that the scheme contemplated "pages for signatures

only." Miss. Code Ann. § 25-5-11. Under cover of a letter dated the following day, Mickens filed a

certificate to the effect that the petitions contained signatures of 1002 electors and that there were

1908 electors in "the county (or beat...)."

¶10. By letter dated August 23, 1993, Higginbotham, through counsel called the Governor's attention

to his previous submission concerning the signatures. He contended that there were "fatal legal

deficiencies" in the petitions and requested that the governor not consider them further. He asked to

be advised if there would be further steps or legal proceedings.

¶11. The statute provides that any officer sought to be removed "shall have the privilege of

submitting evidence in writing, under oath, to the governor as to the question whether or not any

signator to the petition was in fact a qualified elector at the time of signing the petition, or has since

died." Miss. Code Ann. § 25-5-17. While some of the materials submitted by Higginbotham do not

appear to have been submitted under oath those materials did contain affidavits under oath as to

particular signatures.(1)

¶12. Without further communication with Higginbotham, the lieutenant governor acting as governor

in the governor's absence, on August 24, 1993, issued a proclamation declaring that more than 51%

of the qualified electors in Supervisor's District 4, of Noxubee County had signed the removal

petition and convening a Removal Council to conduct a hearing on September 30, 1993.

¶13. Higginbotham through letters of counsel, corresponded further with the office of the governor in

an apparent effort to have the governor consider his previous submissions and to convince the

governor that if he, the governor, did not consider his claims, those claims would not be considered

by the Removal Council and Higginbotham would be effectively denied any forum.

¶14. It appears uncontradicted that the Removal Council, consisting of Chancellors Edward Prisock,

George Warner and Shannon Clark, met informally to agree upon guidelines for the September 30,

1993 hearing. In his pleadings in the Circuit Court of Hinds County seeking injunctive relief,

Higginbotham alleged and supported by affidavit that the Council, at least preliminarily, determined

that it had no jurisdiction to determine defects in the proceedings or the constitutionality of the

statute.

¶15. After first issuing a temporary restraining order, the circuit court, on its own motion scheduled a

hearing on October 4, 1993 to consider defendants' and intervenors' motions to dissolve the order

and for dismissal for lack of jurisdiction. At the hearing, defendants contended that the circuit court

was without jurisdiction to consider any of the matters before it. They took the position that the

governor's actions in accepting the signatures on the petition was beyond review by statute and that

the removal council, despite any preliminary determination that it might have made, did indeed have

the power to consider whether any part of the statutory scheme had been overlooked, whether

Higginbotham had been accorded due process, and whether the statute was constitutional.

¶16. Higginbotham urged that the trial court had jurisdiction to determine whether the statute was

constitutional and argued that the statute violated the separation of powers provisions of the

constitution and that Higginbotham's right to due process had been violated by the failure of the
governor to accord him an adequate hearing on the validity of the petition prior to issuing the

proclamation.

¶17. The circuit court determined that the statutory scheme for the removal of county officers was

not an unconstitutional violation of the separation of powers doctrine and Section 177A of the

Mississippi Constitution. It concluded that it had no jurisdiction to address the procedural defects

alleged. Accordingly, the trial court dissolved the temporary restraining order and dismissed the

complaint. It is from this order that Higginbotham appeals. The circuit court denied a stay of removal

proceedings pending appeal. This Court declined to issue a stay as well. Higginbotham was removed

from office.

II.

¶18. Higginbotham's separation of powers claim requires no extended discussion. He claims that a

county supervisor holds "judicial office" and that, because this is so, removal by a process involving

the governor and not the court is a violation of the separation of powers provision of the

constitution.

¶19. Clearly the constitution provides for the removal of judicial officers through proceedings which

do not involve the court. Sections 50 and 53, Miss. Const. It also provides that the legislature can

empower the Governor to remove county officers by an appropriate statutory mechanism. Section

139, Miss. Const. Nothing in Section 53 or 177A, the two sections which specifically provide for the

removal of judges, suggests that they are exclusive. Nor has it ever been suggested that judges are

not amenable to removal by impeachment under Section 50.

¶20. Thus, the extent to which a county supervisor may be considered a "judicial officer" for these

purposes is of no moment. See Ball v. Fitzpatrick, 602 So. 2d 873 (Miss. 1992)("a board of

supervisors is a branch of the judiciary"); Compare, Mississippi Com'n on Judicial Performance v.

Ishee, 627 So. 2d 283 (Miss. 1993), (the office of county supervisor is not a judicial office within the

meaning of the provision in the code of judicial conduct requiring judges to resign before seeking non

judicial offices.) This assignment of error is without merit.

III.

¶21. The remaining question is whether the Circuit Court of Hinds County had jurisdiction to address

the procedural concerns brought by Higginbotham with respect to the operation of the statutory

scheme in this instance.

¶22. Higginbotham contends that the Removal Council has no authority to address his allegations of

duplicate signatures, fraud in obtaining signatures, failure of the petitions to satisfy statutory

requirements and deprivation of due process. It is limited, Higginbotham suggests, to a determination

whether substantive cause exists for the removal from office. He contends that there must be some

authority empowered to review the process lest he be left totally without a remedy for procedural

error. He contends that the only and proper body is the court.

¶23. This Court appears to have answered the question whether ordinary judicial review is available

to office holders subjected to this statutory scheme, albeit in what could be considered dicta. In State
ex. rel. Patterson v. Board of Supervisors of Prentiss County, 234 Miss. 26, 105 So. 2d 154 (1958)

, this Court considered the statutory scheme, found it constitutional and interpreted it to place

beyond the review of the courts the determinations to be made by the Governor and the Removal

Council.

¶24. Higginbotham correctly points out that what that court had before it was an attempt to raise

issues concerning fraud at a point very late in the proceedings. In the Patterson case the Removal

Council had acted and mandamus proceedings were actually brought by citizens to carry out the

order of that council. The officer there sought to raise questions concerning the initiation of the

proceedings only at this late date. This Court concluded that in a mandamus proceeding inquiry was

limited to the face of the findings of the removal council and the Governor. In doing so, however, it

observed that the legislature expressly committed the process of removal to the governor and the

prescribed removal council without appeal or review and that whether "wise or unwise, the Act in

question is political in nature and was enacted by the Legislature in its exercise of plenary power." Id.

at 157.

¶25. Our constitution provides that the legislature may empower the governor to appoint and remove

county and municipal officers in accordance with such regulations as may be prescribed by law. Miss.

Const. art. V, § 139. Pursuant to that section the legislature adopted the statutory scheme in

question.

¶26. Summarizing the scheme briefly, it provides that upon a petition signed by 51% of the qualified

electors in a county district asserting that the official in question has knowingly or willfully failed,

neglected or refused to perform any of the duties required of such officer, the governor may convene

a removal council consisting of three chancery court judges appointed by the government to hear and

determine whether the officer should be removed. Miss. Code Ann. §§ 25-5-7, 25-5-23. The scheme

specifically provides that the decision of the removal council as to all matters "preliminary of final,

shall be final and not subject to review." Miss. Code Ann. § 25-5-23. The scheme also provides that

the governor's determination whether any particular person was or was not a qualified or elector or

whether such person has since died shall not be subject to review. Miss. Code Ann. § 25-5-17.

¶27. The scheme provides for certifications from the person or person obtaining the signatures as to

the regularity thereof. Miss. Code Ann. § 25-5-13. It also provides for certification by the county

registrar as to the number of signatures of qualified electors on the petition and the number of

registered electors in the district. Miss. Code Ann. § 25-5-15. The affected officer holder has no

involvement in that process. Miss. Code Ann. § 25-5-37(3).

¶28. Higginbotham has challenged the petitions on a number of grounds. Most prominently, he

asserts that the petitions in question contain duplicate signatures and that when duplication is

eliminated the remaining signatures constitute less than the number required for removal.

¶29. Higginbotham pressed his claim with the governor and it was rejected. The removal council

apparently declined to review that claim. The wording of the statute places beyond review, the

decision of the governor as to whether a person was a qualified elector at the time of signing the

petition or has since died. It does not speak, however, to the question whether a particular person

signed more than once or whether there is evidence of fraud in the procurement of the signature. Nor

does it, in explicit terms, put the decision of the governor to accept the petition as a whole and issue
a show cause order beyond review.

¶30. The removal council is empowered to determine whether there is "substantial basis for a removal

election consistently with the provisions of §§ 25-5-3 to 25-5-37." It is § 25-5-5 which states the

grounds for removal. It follows, arguably, that the statutory direction to the removal council is not

limited to consideration of cause. On the other hand § 25-5-25 speaking to the judgment of the

council is couched in terms of a finding, or not, of sufficient cause. The statute provides that no

stenographic record is necessary and that the judgment of the council is final and not subject to

review. Miss. Code Ann. § 25-5-23.

¶31. We are faced with an appeal from a decision of a circuit court declining to interfere with the

process at a point prior to the hearing conducted by the removal council. This is not an appeal from

nor an application for a writ to the removal council. We conclude that the judgment of the circuit

court should be affirmed because the process embodied in the statutory scheme is sufficient to give

office holders such process as is due under the circumstances. Nothing in that scheme requires the

governor to give an officeholder a full fledged hearing on the issue of the sufficiency of the petition.

The attempt to prohibit the removal council from proceeding was, at best, untimely. There was

nothing of substance to suggest that there had been a material violation of the statutory scheme. We

leave to another day whether a decision of a removal council is amenable to review by extraordinary

writ for any alleged failure to follow the prescribed scheme or otherwise.

¶32. For the foregoing reasons the judgment of the circuit court is affirmed.

¶33. AFFIRMED.

PRATHER, C.J., SULLIVAN, P.J., McRAE, ROBERTS, SMITH, MILLS AND WALLER,

JJ., CONCUR. PITTMAN, P.J., NOT PARTICIPATING.

1. The petitions were obtained by Holly Rigdon, Johnny Kinard, Lucille Simonds, Sara Wesley,

qualified electors of Noxubee County, who signed affidavits pursuant to Miss. Code Ann. section 25-

5-13 certifying the petition's validity. Reviewing the material in the record, it appears that the

petitions contain a total of 1054 signatures. Higginbotham claimed in communication to the

governor, after the proclamation, that removal of the duplicate signatures would reduce the number

to less than the required 51%. It is unclear whether the circuit clerk removed the duplicate signatures

in arriving at the figure 1002, but our count of the signatures removing duplicates and those

designated as not qualified electors and void indicates 1003 signatures. Of that number 73 are

questioned by Higginbotham. The statute requires "at least 51% of the qualified electors to initiate

removal." At least 51% of 1908 would require 974 electors. If the statute were interpreted to require

on a majority, 50% +1, or the lowest fraction rounded up to 51% the numbers would be 955 or 964

respectively. None of this, of course, was considered by the circuit court because it concluded that it

did not have jurisdiction to review this matter prior to action of the Removal Council. It plays no part

in the decision of this Court.