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Mississippi Supreme Court upholds Barbour pardons, 6-3

The decision is 6-3, with the primary opinion by Justice Dickinson joined by Carlson, Lamar, Kitchens, Chandler, and King.  Carlson also wrote, joined by Dickinson, Lamar, and Chandler.  Chandler wrote, joined by Carlson and Dickinson.  Waller, Randolph, and Pierce each wrote in dissent, and joined each others opinions.

A few key passages early on make clear the basis for the opinion:

While this Court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline – as have so many other courts before us – to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justiciable violation of a personal right.

At oral argument, we asked Attorney General Hood to point out any pardon that was not facially valid, and he could not.

But we need not discuss these issues because, even assuming the attorney general’s views are correct, the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of government has constitutional authority to void a facially-valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124′s publication requirement.

Interesting bit from Justice Carlson’s concurrence:

Turning now to some of the separate opinions, Chief Justice Waller, in his dissent, states, at least inferentially, that the governor has no right to interpret our state constitution.  Justice Randolph, in no uncertain terms, states that the governor is without authority to interpret our state Constitution.

Justice Chandler’s concurrence starts with Jefferson:

[T]he [judicial] opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.

8 Thomas Jefferson, The Writings of Thomas Jefferson 310 (1897). ¶72. As Thomas Jefferson understood, each of the three branches of government is entrusted to decide what laws are constitutional for itself in its own respective sphere of action. This means that each branch is charged with interpreting the procedural provisions of the Constitution applicable to that branch.

Justice Randolph’s dissent comes out angrily pretty quickly:

Today’s decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State. Our Constitution and numerous holdings of this venerable institution are turned upon their heads by this Court’s relinquishing the inherent judicial function of declaring what the Constitution and our laws say.

A major theme of his opinion is that the failure to publish nullifies the right of “the people” to petition the government, because it deprives them of notice of what is about to occur:

The people’s substantive right to petition the government has been annulled by the majority’s refusal to require compliance with Article 5, Section 124, by the convicted felons or the governor.  Absent publication– which provides public notice that a convicted felon is seeking a pardon – the general public is silently and blindly cordoned off from the mansion and office of the governor, left unaware that its right to petition the government slowly disappears, before completely vanishing once pen touches paper.

24 comments to Mississippi Supreme Court upholds Barbour pardons, 6-3

  • Floyd Pink

    I haven’t read it but Pierce and Randolph are not a surprise to me and I guessed 7-2 with those in mind. Waller didn’t reveal much at Oral Argument so I can’t say his vote is a surprise. I think the most political person on the court and the two who seemed to have the least grasp of the issues dissented. That’s my first impression without reading.

  • Anderson

    Agreed that one couldn’t get a read on Waller at argument.

    This one did pretty much follow the impressions at oral argument – maybe that’s an easier read when you have three hours’ worth of argument from which to infer.

    But Hood will still get his campaign commercial out of it: “when Haley Barbour set murderers free, Jim Hood fought to keep them in jail.” Which was pretty much what he wanted out of the case.

  • Terminator

    It is now well settled that the Governor can blatantly ignore constitutional mandates without fear of review. I would have no problem with the majority opinion if there were at least some papers that the governor construed as an “application” and some evidence of something being published that the governor construed as sufficient publication, but have a huge problem for the fact that the mansion trusties never applied and never published, which the Court says IS required. That’s a meaningless expression of the majority since there are no tangible documents or other evidence from which Barbour could have based any findings.

    I expect a big push to change the constitution to in effect make this ruling meaningless and am glad it now won’t happen in a rushed, passionate manner. The pardon power is necessary and shouldn’t be abolished or modified where it would be almost impossible to jump through too many hoops to be in position to be considered for one.

  • Anderson

    … Randolph’s is certainly an expansive notion of the petition right.

    The Court’s op restricts judicial intervention to instances where a personal or property right is at stake, which seems like the correct line to draw.

  • Jane

    So, according to Carlson’s opinion, Hood submitted a 28(j) letter citing to how Governors Waller and John Bell Willians interpreted the 30-day notice provision. Which leads me to believe he has no clue what this separation of powers thing is.

  • Chet

    Justice Randolph’s fire may be fanned by the fact that he’s up for reelection in November.

  • Anderson

    Hm. Good observation, Chet. So is Waller. Not that I doubt either is sincere.

    The other one up this time is Carlson, and he’s not running again.

  • Terminator

    Isn’t Dickinson up for re-election also? If so, he’s proved that he can be above politics…

  • NMC

    He’s not, I don’t think but I’m not sure.

    Justice Dickinson’s discussion of Marbury and the Judge Nixon impeachment case is pretty interesting.

    I’m having a little trouble with this footnote from the last page of his opinion:

    Justice Randolph attempts to compare the facially-valid driver’s license in Cousins v. Enterprise Leasing Co.-South Cent., Inc., 948 So. 2d 1287 (Miss. 2007) (Dickinson, J, dissenting), to the facially-valid pardons here. We were under the impression in Cousins that the Mississippi Department of Public Safety – which is not one of our three branches of government – issued the driver’s license. No one in that case suggested that the governor, personally, issues drivers’ licenses in Mississippi. Had that fact been established, I would not have dissented.
    << The Dept of Public Safety isn’t in the executive branch? Where is it?

  • Anderson

    Don’t think that’s what he said, NMC – the MDPS is not *itself* a “branch of gov’t” and the gov didn’t “personally” issue the license.

    Randolph is just trying to tweak Dickinson.

    … Term-inator, Dickinson was elected, or re-elected, in 2010.

  • Charlie Ali

    The people are not sovereign in this state. Though the constitution give them a people’s notice provision, the High Court cannot see that the convict or the Governor meet that provision and execute that publication. The Governor and the Dept. of Corrections are the all powerful branch. They are the one’s who tend to and forward the notices to the people as they alone see fit. It is another proof of the expansive bureaucracy in developed industrial nations and that they are the government in every practical consideration. The Governor and his agents are the people’s Confessor and the Head of the church. As a Baptist I value no confessor as Governor and Pope.

  • NMC

    I realize he’s tweaking Justice Dickinson, but when the Dept of Public Safety does something, it’s the Executive Branch doing something, right?

  • Anderson

    Sure, but it’s not an act *by* the Governor in the same sense as a pardon, is it?

    I mean, if Public Safety won’t renew my license, can the Governor issue me a license anyway?

    I certainly don’t take today’s op as applying to administrative agencies.

  • NMC

    I’ll admit to losing patience in the dissents. Justice Dickinson carefully explains how it is that there are powers assigned to certain departments that can’t be questioned by other departments, but I really don’t see how the dissents get an inch beyond the naked assertion “It’s in the constitution and we get to review it.”

    I’ understand that the constitution requires publication. I’ve got that there is at least an allegation that publication wasn’t met for some. But the dissents don’t even grapple with the idea that there are certain questions outside the reach of the courts, which there clearly are. Justice Dickinson’s reading of Marbury, the Nixon case, and a couple of Mississippi cases isn’t really answered.

  • Anderson

    Well, Pierce had the right idea in arguing that Tuck and Dye placed limits on the earlier holdings. That is what Hood should’ve showed up prepared to argue. I continue to be bewildered as to what, exactly, Hood did to prepare for that argument.

    I think the Southwick cited by Pierce was an abridgement of that journal article by Southwick that I posted on last month.

  • NMC

    I’ve just read Cousins. It’s easy to distinguish. Justice DIckinson’s flip language in the footnote doesn’t do so.

  • Anderson

    Flip language is usually more entertaining to the author than persuasive to the reader.

    The ops show some signs of being a bit rushed – who knows how late Randolph inserted that snipe at Dickinson, who may’ve just dashed off something without even reviewing the case.

  • Vance Justice

    As I read the state constitution, there is nothing in it that prohibits the Governor from granting a pardon to a person who has not applied for one. Doesn’t that make the question of a valid application a moot point once a person has been granted a pardon?

  • Terminator

    Dickinson re-elected in 2010 for another 8 year term. Thanks Anderson.

    Just proves the opposite of earlier post: he was assigned/volunteered the majority opinion as member of the majority most insulated from the people. Politics as usual.

    Meanwhile, Waller takes cover in the water-thin dissent bunker.

  • Anderson

    As I read the state constitution, there is nothing in it that prohibits the Governor from granting a pardon to a person who has not applied for one.

    We’ve been thinking that was a weak point; Randolph basically just dismisses that as preposterous in his dissent.

    FWIW, I have posted a first draft of a revised Section 124. Maybe not quite as good as what an insurance agent would come up with, but I appreciate any critiques. Among other things, it would get rid of that “applicant” loophole.

  • BlackBear

    “Flip language is usually more entertaining to the author than persuasive to the reader.”

    And it’s usually easier work. It takes time to write a well-reasoned judicial opinion, though the enticing avenue of a flippant response is always there with an easy out.

    A disappointing result overall, in my opinion.

  • Anderson

    BB, Dickinson was flip in one footnote at the end; if you want to convince me that the Court’s op was not “well-reasoned,” have at it.

  • BlackBear

    No Anderson, I don’t want or care to convince you of that.

  • [...] Mississippi Supreme Court upholds Haley Barbour’s pardons. [...]

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