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Live Blogging the Barbour Pardon Supreme Court argument


I just started watching at 9:05 (had an appointment).

Fortner is being seriously questioned, and doing a good job responding.

Hard question:  If the governor did a pardon prior to conviction, could that be raised in court?

Fortner:  Yes.  He explains that question would come up when the improper pardon was raised as a defense to a prosecution.   The court could here that, and, unlike the pardons in this case, it would not be a pardon valid on its face.  He then explained how the pardons in this case all recited that there were convictions– they were valid on their face.

He was then questioned about cases involving mandates to the legislature.

Dickinson:  Don’t you think there are circumstances that the court would go behind the legislature, talking about the Hunt case.  Uses an example of the legislature passing a rule that only the male legislators could vote on a bill.  Could the court hear that question.

Fortner:  For that kind of arguement, the court could go anywhere it needed to go.


Q: Is it your position that the governor has the right to waive the obligation of the petitioner to publish?

A: The Governor is the sole judge of the propriety of the publication.

Q. asked based on the dicta in  Metz 

A.  Not just Metz.  Also refers to Hall (the legislature case) and a 19th C case.

Later:  Judicial review ends when the pardons on their face are valid.

Q about pardons for treason (which require approval by the legislature)

A.  Consent of the senate would have to be on the face of the pardon.

My note:  I think Fortner has answered a couple of tough questions in ways that are problematic for him.  If there must be a recital of act by the legislature on a treason pardon for it to be facially valid, shouldn’t there be a recital about publication, another requirement in the constitution?

Fortner:  If you are shown a pardon that doesn’t show on its face its validity.

Q:  cites a libel case that notes in passing the requirement of publication.  The publication of a pardon application was the basis of a libel suit, and the court noted that these  publications are required and therefore privilged.

A.  Doesn’t really answer.  I think the answer here is:  I’m not saying the publication requirement isn’t a requirement, but that only the governor is the judge of the requirement.

Justice Dickinson:  “Making the call.”  Restates Fortners argument as that only the governor can deal with the question of meeting the pardon.

A.  Agrees.  And he has to.


Dickinson:  Asks about pardons of future death penalty defendants (that is, before they are convicted).  Can that be done?

A.  Pardons not valid on their face because don’t recite conviction.

Q. Who is the publication requirement for? Who does it benefit?

A.  Honestly don’t know.

Governor has the power to reach into prison and pull a handful of people out.

Randolph:  Notes earlier constitutions had no pardon provision.  Then “the people” conditioned authority for pardon on publication, which was not in the prior constitution.  “So it’s a limited power conditioned on the” publication

A.  Yes sir, but on a condition that only the governor can decide if it is satisfied or not.

Randolph.  Raises Marbury v. Madison that it is for the courts to decide whether a constitutional provision has been met.

A. If we have a justiciable issue.  Not a notice provision, not mandatory.

Note:  I think this question is a bit harder than the answer presumed and would expect it to be more than a small part of Randolph’s opinion if he decides the case the way his questions suggest.

Randolph.  Give me one case that says it is not mandatory, that a majority of this court says that.

A.  I don’t know.

Randolph.  That would mean that this is a case of first impression.

A. About Section 124 but not about the separation of powers issue, cites  Hunt on provisions for the legislature.

Note:  This is a really strong answer that also strongly anticipated Dickinson’s questions for Hood.

time out for Fortner


Charles Griffin for Gov. Barbour.  Starts by framing the issue as separation of powers.

Q.  When did the dictum in the Metz case become law.

A.  Dictum was adopted in Montgomery v. Cleveland.  Reads from it.

Q.  Montomgery says that publication had been met.

A.  Yes.

Q.  Hence first impression.

[missed about 4 mins]


Justice Carlson asked about harmless error analysis.

A.  There is no way for the attorney general to meet his burden.  He can’t meet his burden of showing there would be error that would be harmful.

Cynthia Stewart

Chandlers asks about the language in the pardon and Stewart responds that a court would have to make a determination about the meaning of language in a pardon.

Note:  Isn’t that a dangerous concession?

Q:  Didn’t her clients meet publication requirement?  Didn’t you believe there was a publication requirement:

A.  Believed there might be.

Randolph, I think:  Didn’t you file a habeas corpus on behalf of Mr. Kamboule saying he followed all constitutional guidelines including publication.  You believed that when you wrote that down.

She got closely questioned about both publishing and saying in habeas pleadings her client had published, and about a discrepancy in her client’s pardon (he was pardoned for two crimes but the pardon first listed two and then later said “crime” not “crimes”.  This seemed not entirely fair.


Starts with Marbury v. Madison and said, when he started law school, he read the case and thought the law began there.  His professor said “have you read the constitution?” Learned you have to read it again and again.

Justice Lamar:  Publish what?  Publish your petition is what it says.

Basically argues that the court has refrained from going into the details of how a pardon was achieved.  Cites Blackmon v. Tuck saying “I was told to cite this case” to general and appropriate laughter.

Blackmon:  Brown applied for commutation, not a pardon.  He did publish.

Carlson asks about 30 consecutive days.  Blackmon:  Impossible to meet.

Note:  Is there a lawyer in Mississippi that isn’t in the AG’s office that thinks 30 days notice means a publication every single day?

Mayer;  Wants to hold time for rebuttal.

Q:  Did not join other parties on issue of standing?

A.  He did join.  Saved time for rebuttal.

Sylvia Owen:

Talks about how the pardon power can be excercised for a miscarriage of justice, or in a case of actual innocence:  No judicial remedy for an innocent person.

This argument seems to go in a direction it doesn’t need to be going….

Justice Dickinson notes that there are remedies for actual innocence, that the courts do grant such a remedy.  There are remedies for actual proof of innocence.  Specifically names the Brewer case.

Break till 10:40.  Return with Gen. Hood.


King- Q.  What constitutes a facially invalid pardon, and which of the ones here are facially invalid.

A.  Talks around the issue

Q.  Are they facially invalid?

A.  Doesn’t answer again.  We contend they are facially invalid.  Moves to publication question without answering.

Note:  Hood’s brief says the pardons are facially invalid, and they aren’t– you look at them and they are fine.

Dickinson:  What if there is no applicant.

Hood says there has to be an applicant.   The pardonee has to apply.  So there’s an application requirement in addition to the publication requirement.

Lamar:  Where does it come from that commutation and medical release aren’t subject to the pardon requirement.

Hood:  doesn’t say that.

Chandler:  Is it necessary to publish for thirty days prior to the pardon?

Hood: Yes

Chandler:  “Once you start reviewing the language, everyone has their own interpretation.”

Chandler:  Mississippi has no provision limiting the governor’s power, but it does in Kansas.  Ours is more like the Montgomery case in Mississippi.

Hood:  “Um.  The um.  The  pardon power.  Um.  that you suggested.  In the Kansas case.”

Kitchens:  You say there is always a presumption that someone applied.  … If there is not an application, it does not seem reading this constitution that the publication requirement is triggered.

Hood:  That section would not mean anything if the publication requirement wasn’t triggered.  Cites Montgomery.

Note:  Hold that thought– remember the cite to Montgomery.

Kitchens:  When no one has asked or petitioned for a pardon, why is there a publication requirement in a case like that.

A.  There’s a publication requirement.

Kitchens.  I know you think that but why do you think that.

A.  Says it again without a reason.

Kitchens:  Even with posthumous pardon?

A.  Yes sir.  Most of them have lawyers

Q.  Somebody can act as a representative can do the pardon.

King:  Akin to what Justice Kitchens says, … once the governor got it in his mind he was going to pardon the mansion trustees, that became an application.  What’s the legal authority for that statement?

A.  doesn’t answer.

King:  Legal authority for that position?

A.  Theres not.  We haven’t had a case like this.  Most of the governors did not grant a large number of pardons at the end.

King:  Is it the number that makes the difference.

A.  Reasserts that governor did not have that power.

Q.  Do you dispute that an attorney in your office gave advice to the governor.

A.  Talks about the text messages.

Q.  Standing issue– would it be best for the individual district attorneys to take this on in light of the statutory duties and the obvious conflict between Mr. Scott and the position you are taking today.

A.  Several of the district attorneys are here.  Jurisdiction is in Hinds County….  Starts talking jurisdiction.

There is no conflict.  David Scott is one of the hardest headed lawyers we have.

Q.  Thought I heard you say the lawyer for the Dept of Corrections Scott told the executive office to look at Section 124.

Q.  Executive lawyers didn’t agree that 124 controlled– don’t think publication required.

A.  Then at last hour, decide needed to publish.

Q.  Fair to say debate between executive office and lawyers for MDOC as to what the law said.

A.  No debate.

Q.  Asks about whether two clients of Stewart’s clients met publication requirement

A.  Published for 28 days in the fall.  That doesnt count– did not publish for 30 days..  Could have said 4 weeks.

Q.  Couldn’t they have said “consecutive” too.

Chandler:  that’s in conflict with the ____ case.  What is loose about this.  It said it was published for four weeks consecutively and that constituted 30 day publication.

Hood:  That’s a statute not the constitution.  The legislature can fix a statute.

Waller.  Only time pardons challenged was Montgomery, which had a question whether the Lt. Gov. could pardon when Gov. out of state in Memphis.

A.  Don’t know in court.  Do know of a governor correcting another governor’s pardon.

Waller.  Has every governor since then followed Section 124 as textually as you present today.

A.  I’ll give you an example…

Waller.  No, I want you to answer my question– asks again.

A.  talks about corrected pardon, mentions the correction was by Waller’s pardon.  Says that Waller corrected the pardon after publication requirement was met.

Questions about whether there were applicants and publications for prior governors.  He doesn’t know.

Dickinson:  Asks about text messages where Scott represents they will take care of publication.

A.  Gov. can’t shirk the duty and blame it on someone else.  “I would like the opportunity to correct some misstatements.  I don’t believe Charles [Griffin] wrote that brief.”  Hood describes his version of the communications between Gov. office and Scott.

Dickinson:  If the governor is the sole judge of the sufficiency of the facts, aren’t you asking us to review that?  (quoting Montgomery case.

A.  It is a dissent.

Dickinson:  What is a dissent?

Other justice:  He [Hood] is talking about Metz.  

Dickinson:  Quotes Etheridge in the Montgomery case, where this court said the governor is the sole judge of the sufficiency of the facts and the propriety of the granting of the pardon.  Says he is having trouble seeing how the issues about publication are the factual determinations of the sort this Court held it would not engage in in Montgomery.  That’s pretty binding precedent.

A.  My recollection is that Justice Etheridge wrote that dissent in Metz.

Dickenson:  We are in Montogmery, the case you have cited.

A.  Well, Justice Etheridge does not say that in his constitutional treatise.

Dickenson:  You are not saying that Justice Etheridge can reverse his opinion by writing a treatise.

Lamar:  Language Justice Dickinson is quoting is the majority opinion in Montgomery.

Hood:  The distinction is… propriety…    This court has the power to look at the validity.

Dickinson:  Gov is the sole judge of two things– sufficiency of the facts.

Hood starts talking about the veto power….

Another followup from Justice Dickinson’s reading of Montgomery.  

Hood is now saying in addition to publication there is “a right to be heard” about pardons.

He’s now added an application requirement and a right to be heard?

Q.  You just said that prior to 1890 there was an abuse of some sort. Asks for legislative history for reason.  Larger question for me is this:  The power of pardon, we have this wonderful three branch government.  But the pardon is a check on the judiciary to some extent, this court would not have absolute authority to review.  That is the big issue here.

Hood describes his historical materials.

Q.  Who is the application process for the benefit of

A.  It’s a constitutional right of the people to have that notice.  That’s due process.

Dickinson:  Asks about Hart.  Why would we not go into it then but go into it now?

A.  We are not going to get into operation until they take some act.

Dickinson:  That happened here.  Legislature passed a bill and it was challenged as violating a constitutional provision about introducing a bill the last 5 days.

A.  Those are the inner workings of the legislature and we are not going to get into that.  The governor can call out the militia and that doesn’t effect the constitutional rights of anyone.  When there are constitutional rights involved, then this court’s will engage.

Dickinson:  What constitutional right

A.  Right to notice.

Dickinson:  Why is the constitutional right to notice more important than the peoples right not to have bills introduced the last five days.

Carlson.  Starts talking inner workings again.

Carlson.  That’s the point Dickinson is making

Hood:  I’m not sure that case was decided correctly.

Note:  Hood has essentially admitted they have to overrule two cases to get where he wants to go.  Game, set, match?  And one of them Montgomery, he had been citing only moments before.

Randolph:  Right that was retained by the people (about pardon) by the constitution that we are involved with here.

A.  Agrees.  Gov. doesn’t have the power other than what is given to him by the constitution.

Dickinson:  I don’t understand why that is different than “the people” saying something to the legislature (refering to Hunt).  Says you are constitutionally prohibited from passing revenue bills in the last 5 days of the legislature.  I am having trouble seeing how that is different.

A.  If I were the judge, I would have decided that differently.

Dickinson:  If you are taking the position the case is wrong, that argument I understand, but I do not understand the argument you are making that that is different.  What is the difference.

A.  I don’t know.

Dickinson:  You think the case was wrongly decided.

A.  agrees

Dickinson:  I have no more questions.

Hood says the publication requirement is substantive not procedural, and keeps talking about “the people’s right.”

Q:  It’s a natural right of the citizens.  [Huh??]

Chandler:  Lists three cases he thinks Hood must be saying are wrong to get where he wants to go.

Note:  Does this mean Chandler, Carlson, Dickinson, Lamar, and King are all showing strongly against Hood?

A.  I’ve lost track of the question.  I understand what you are saying about [Hunt].  Says it is different but does not say why other than “the peoples right was violated.”

Lamar:  Asks about Hood’s position commutation, suspension of sentence not requiring publication.  Unusual posture of case.  There are 10 before us today, and last week stayed lower court but left TRO in effect until matter sorted out.  Are there people being held in Parchman today who are holding a facially valid grant of commutation of sentence or medical release

A.  No.  No one with medical release or suspension being held.  Those are out.

Q.  So [lists 5] are who is being held and only those five.

A.  Yes mam.

Q.  [question about numbers]

Talking about harmless error, Hood analogizes to Pontius Pilate pardoning Barabas and having to go before the people….

Now he’s talking about “horseshoes are close enough.”  Said nothing about hand grenades.  “Thirty days is thirty days.”  “If you say you are going to the beach thirty days, you don’t anticipate somebody coming back in that period.”

Lamar:  What was done in the cases you say are sufficient?

Hood:  I’m seeking a pardon.

Lamar:  In none of those cases was the actual petition published.

Q:  But the constitution says to publish a petition.  You say the newspapers are deciding instead of the actual petition there’s going to be a paraphrase.

A.  We aren’t contesting that.

Lamar:  Why are we concerned with the letter of the law on some words in the constitution and not others.

A.  It’s just notice, just logically interpreting it.

Q.  You are telling us that you can use your best judgment [about meeting publication] and the governor can’t.

A.  no sir.  56 had no publication at all.

Q.  Some had no publication.

A.  I suspect some of them dead.

Q.  Woah, woah, woah.  You’re not saying that some of the applied.

Q.  Says he is having a hard time swallowing that there were some that didn’t petition for a pardon.  You are saying you want an opportunity to take depositions.

A.  Yes, if you feel an application is necessary.  When they become a trusty they are auditioning for a pardon.

Q.  How are people selected to be a trusty.

A.  MDOC picks some out, submits to gov’s office, gov gives criteria, each particular gov decides who they want in the mansion.

Q.  How many typically are there.

A.  As many as 7 or 8.  Not sure.

Kitchens;  When MDOC submits a list and someone at the mansion approves that list, you are saying that constitutes an application for a pardon

Q.  do you have to apply to be a trusty?

A.  I think MDOC makes that determination.


Griffin rebuttal–

Randolph: : Who protects the people and the constitution

Randolph:  If there is a decision by the court protecting the power of the people, that does not invade the province of the governor.

Griffin:  To the extent that Gen. Hood said I did not write the brief.  I have to stand by my law firm and my brief, it was not intended to insult the Attorney General.  Notes he has known Hood for 20 years.


King: Would one publication meet the 30 day notice requirement.

Q.  Article III section 28– doesn’t that say the victims of crime have a right to be informed.  So look at 124 says to publish, and there is no publication, does that not violate that substantive right.

Q about overruling those three cases.  Griffin agrees cases have to be overruled.  Pierce indicates willingness to look at constitutional language and overrule them.

Griffin notes that a pardonee under Musgrove did not apply.


My four clients, trustys, did not apply for pardon, and mansion trustys never have.  There is no written application.

Fortner aays that he cannot help after his experience of so many years of having harmless error shoved down his throat, he’s going to argue harmless error.  Lists constitutional rights that can be violated and held harmless error.  Gets a good laugh.

Q:  What cases have to be overruled

A.  Wren, Hall, Cleveland, Polk, that series of cases.

Randolph:  Did we not agree early on there has not been a case on point about the notice being a condition precedent.

A.  There is not something directly on point.  I think you are going to be treating the executive differently than the legislative.  You are going to be saying we are treating the executive with less respect than the legislature.

Q.  How are the people protected?

A.  Impeach, ballot box.

Q.  Two of the three won’t apply in this case.

A.  Can’t help.  All I can say is that is what the constitution dictates are remedies.

Q.  If it is void because of a condition precedent, it would neither require looking at the facts or a harmless error analysis.

A. If its void on its face.  I’ve never seen a pardon document that said that publication had to be done.  Section 124 does not say proof of publication is required.


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