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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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.

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