I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Yes, it does appear McDaniel did not file his complaint within the required time

Update (x2): Didn’t someone tell me that McDaniel was a lawyer?  The Clarion-Ledger’s Geoff Pender, who I just realized got there ahead of me on what I’ve written below, quotes the would-be senator on his delay in filing:  “‘Justice has no timetable,’ McDaniel said numerous times when questioned why it was taking so long to file his challenge of the June 24 GOP runoff for U.S. Senate.”  Does this mean that McDaniel-the-lawyer doesn’t have to bother with calendaring deadlines?

There’s more from Pender’s piece from Saturday below, including speculation about the judge.

The complaint with the state executive committee was filed on August 4, 2014.  As that complaint notes, primary had occurred on June 24, 2014.

That looks to me to be about forty days there.

There are two statutes governing primary challenges.  The one for county offices states that a challenging candidate “may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested….”  Miss. Code. Ann. § 23-15-921.  The statute for state office challenges provides a candidate challenge “upon complaint filed with the Chairman of the State Executive Committee, by petition, reciting the grounds upon which the election is contested.”   Miss. Code. Ann. § 23-15-923.  No time deadline there.  However, the Mississippi Supreme Court has construed the second statute to import the time deadline from the first, because they were both created in the same legislation.  Kellum v. Johnson, 115 So.2d 147 (Miss. 1959).  Kellum involved a race for district attorney, a multi-county race.  Essentially, the Supreme Court held that the Mississippi legislature would not have been so stupid to have created a time limitation for one challenge and not the other (“In construing statutes, the courts should not convict the Legislature of unaccountable capriciousness.”).   While the case may somewhat overestimate the reliability of our legislature, its holding is pretty clear:  McDaniel had to file within twenty days, which he did not do.

Kellum also holds that the deadline is not a statute of limitations, but rather a condition precedent for filing suit (and thus, like other jurisdictional matters, cannot be waived).

As one would expect, Cochran’s lawyers cite both statutes and Kellum in their answer to the McDaniel complaint.  I’m about ready to conclude that this fun won’t last a lot longer.  Any contrary opinions?

As an aside, for those of you keeping track of cases for odd-to-find propositions, the language in Kellum about presuming legislators are not dummies (well, capricious) could come in handy some day.


Pender says that McDaniel’s lawyers are claiming that their litigation over access to voting records “should have reset the clock on any deadlines.”  What litigation?  In any event, that make no sense.  Pender then goes on to speculate about what the judge might do:

It’s conceivable Judge Hollis McGehee this week could dismiss Chris McDaniel v. Thad Cochran on the timeliness motion.

But given the realpolitik of the case, I doubt that happens. Imagine the uproar from the tea party faithful if McDaniel isn’t given his day, or in this case 10 days, in court.

Judge McGehee, bless his heart, has perhaps the most unenviable task handed to a Mississippi jurist in a generation. I think I would have suddenly remembered some oral surgery I had planned for September if I were a judge and the chief justice had called.

McGehee is known for careful and fair deliberation. I believe it’s more likely the judge will reserve ruling on the timeliness motion until after hearing the rest of the case.

I do not know the judge, but I know this:  If he goes ahead and tries the case, it’s going to be a logistical nightmare, particularly if he has to yank every circuit clerk in the state (or many of them) into the proceeding.  To the true-believers, a procedural default is going to look the same whether done before or after a trial.  Curious what others think.

Update 2:

I just read the Cochran brief on their motion to dismiss.  It’s a fast ball down the middle, and I expect a really silly swing behind the pitch from the McDaniel side.  It gives McDaniel one benefit of the doubt (counting the 20 days from the certification of the election and not the primary itself, although the statute says “within twenty (20) days after the primary election” which is why I counted from the election.  McDaniel comes up too late either way).  The brief also adds the argument that, because the legislature has tinkered with the statutes and reenacted the both of them without changing the provisions interpreted in Kellum, the legislature has appeared to accept the Kellum intepretation.

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