Matt at Ipse Blogit just told me that Justice Randlolph stated at a CLE on the coast that at 1:00 this afternoon, the Mississippi Supreme Court issued an order that the Governor has no authority to cut the funds appropriate to the Judiciary Branch. Matt’s blogged this development.
This should be interesting!
UPDATE: Here’s the order of Chief Justice Waller’s “En Banc Administrative Order,” which notes that the State Fiscal Officer can only cut the funds of “agencies and the Department of Transportation,” and that that the Judiciary Branch is neither of those things. The order requires that the appellate, chancery, and circuit courts, along with their supporting offices, “shall remain open, performing the constitutionally-mandated responsibilities of the Judicial Branch of government.” The court’s marshal was to deliver the order to the State Fiscal Officer, Gov. Barbour, Lt. Gov. Bryant, Billy McCoy, and Attorney General Hood.
Does the Legislature? I ain’t got time to wade through the 1890 Constitution right now, but I’ve been under the impression that the Governor does have the authority to make budget cuts, but the budget cuts have to be across the board – the same percentage on each agency. A a time when all agencies are going to be cut deeply, is it a good idea – for the long term – for the Supremes to be picking a fight?
It’s long overdue that the judiciary in this State not only recognize, but act on, the fact that it’s a coequal branch of the government and not merely an adjunct to the executive branch. This development bodes well for the future of judicial independence in this State, from all manner of encroachments, if it’s not merely a flash in the pan.
Observer @ 3:13 pm: I believe the point is that the judiciary is not an executive agency subject to the Governor’s authority. From a separation of powers argument, I believe this position is absolutely right. As for whether it’s a good time for the Supreme Court to pick a fight, I couldn’t think of a better time.
Boom! Pass the popcorn!
Governor Barbour, who wishes to dance on the national stage, has landed right in the middle of a looming national debate over trias politica. Obama vs. Alito has become Barbour vs. Waller.
Way to go, Mike. This is a long, long overdue planting of the judicial colors. I commend the court and hope that the bar, such as it is, and all the state’s judges will stand united on this.
I have no copy of the 1890 constitution. It is the law of the land and though it re-institutionalized the former white supremacy it certainly contains a separation theory. Justice Waller however is not the expert on that fact. One who is both general and judge…if u recall.
1890 Constitution here (click on the Code folder, & it’s the first subfolder therein).
Wow! Pass that popcorn, Anderson, this is going to be a heck of a show!
Rather than an “EN BANC ADMINISTRATIVE ORDER”, I would call it a “PER CURIAM KISSOFF”…
It’s startling how little light the 1890 constitution sheds on this subject. Where exactly does it define executive, legislative, and judicial powers? It’s interesting to note that the Attorney General (and District Attorneys) are defined in the Judiciary Branch. Are they going to be able to tell Barbour where to stick his cuts?
There is this– section 1 establishes the three branches, and then section 2 says this: “No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others.”
Does the provision in Section 24 requiring “all courts to be open” matter here?
Does anyone remember the opinion battle within the supreme court (Justices Robertson and Sullivan writing opposing opinions)when (if I recall rightly) Senators Steven Hale and Gene (now Congressman) Gene Taylor challenged Brad Dye for allegedly violating the separation of powers doctrine?
All justices joined so the order is 4 real. Comes a point that funds n treasury cannot fund the execution of our laws (ie state agencies). Justice is co-equal and will do doubt b funded with courts open 2 all comers. Governor does own the great seal so he can send the Sec of State over 2 the court with an order of his own.
NMC, I was going to comment on your question regarding cuts to prosecutors, but it got out of hand. So I blogged it instead. Short answer to the question: I believe so.
Excellent, excellent catch there, my friend.
Sidebar comment for Matt: Respectfully invite you to blog with a much much darker blue ink … closer to indigo. Or black. That Carolina blue, or whatever it is on Ipse, is simply too much of a strain for old eyes.
Ben – Your wish has been granted. Changed it to black.
If the Governor of our fair State elects not to follow the Administrative Order of the Court, do you think he might be jailed for contempt?
Since the Governor is co-equal with the Court, how, pray tell, can the Court hold him in contempt? It cannot. And how can the Court enforce its order? It cannot. The Legislature appropriates funds, and the Governor expends the funds, and the incoming funds are down 8 percent from what was expected. So the Supremes think that they don’t have to accept a cut? The Supremes are being stupid. This isn’t a political fight. It’s a very real financial crisis. The Supremes just chose to make it a political fight. Under the 1890 Constitution, the Supreme Court only has: The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. Section 146. The Supremes may end up losing more ground than they have to gain in this fight.
IMO, the MSC is correct. But, the Legislature clearly has the power to appropriate or cut funds to all state agencies, including the Judiciary (but, likely with limititations —cannot cut funds to the point that Judiciary cannot properly function — also cannot cut funds to Executive Branch to point it cannot properly function).
This may become a moot point when the Legislature itself has to cut some appropriations to the Judiciary branch. But, it is not moot from a constitutional standpoint. Never has there been a time in our country and state’s history that it is more important to stand up for constitutional law and priciples. There are too many in our society, and in politics, who believe that any means to an end is appropriate, no matter how much trampling of constitutional principles is involved in getting there. Its time to take a stand against further intrusions, and to start reversing some old, bad case prededents.
Pass that popcorn. The public dialogue created by this controversy is a good thing.
Observer – Section 9-1-17 says:
“The Supreme, circuit, chancery and county courts and the Court of Appeals shall have power to fine and imprison any person guilty of contempt of the court while sitting, but the fine shall not exceed One Hundred Dollars ($100.00) for each offense, nor shall the imprisonment continue longer than thirty (30) days. If any witness refuse to be sworn or to give evidence, or if any officer or person refuse to obey or perform any rules, order, or judgment of the court, such court shall have power to fine and imprison such officer or person until he shall give evidence, or until the rule, order, or judgment shall be complied with. ”
So, yeah, they have contempt power, and could theoretically hold even the Governor in contempt and jail him until he complies. But can they hold the State Fiscal Officer in contempt for violation of this order? (That’s the executive branch officer who reduces the previously allocated funding to different agencies in accordance with 27-104-13.) To me, the answer to that question is found in the answer to this question: what is the scope and authority of an administrative order? Honestly, I don’t know.
ETA – Perhaps the proper way to handle this would be the seeking of an injunction by a circuit judge and district attorneys that would prohibit the State Fiscal Officer from making reductions to the Judiciary. The problem with that is, well, would every judge and justice have to recuse? If so, perhaps it would be proper to appoint special judges and justices to hear the issue.
“But can they hold the State Fiscal Officer in contempt for violation of this order?… To me, the answer to that question is found in the answer to this question: what is the scope and authority of an administrative order? Honestly, I don’t know.”
Great thought Eich – it isn’t like the Court gave the Governor or Legislature notice of a hearing. The Governor would ultimately be in contempt of an Order that he were not given notice of its hearing (or back room meeting about) and therefore no opportunity to be heard. So I think you are correct – seek injunctive relief.
I know of at least two chancellors not seeking re-election. Maybe they ought to hear the matter.
Oberver- the judiciary has been, particularly when compared with the other 2 government branches, a very low cost operator. AS Justice Waller points out the entire judicial budget is just little over 1/2 of 1% of the state’s whole budget.The trouble with equal, across the board cuts is that they unfairly penalize those agencies/branches like the judiciary which weren’t blowing money to start with. If you haven’t done so please read Justice Waller’s Order before you get too critical of it.
Observer wrote:
>
Since the Governor is co-equal with the Court, how, pray tell, can the Court hold him in contempt? It cannot. And how can the Court enforce its order? It cannot. The Legislature appropriates funds, and the Governor expends the funds, and the incoming funds are down 8 percent from what was expected. So the Supremes think that they don’t have to accept a cut?
<
That’s what they’ve said, Observer. Where do you get the notion they cannot find the governor in contempt? Are you actually saying that the governor is not subject to orders of the Mississippi court system? Surely you don’t believe that– recall his having to litigate matters concerning the special senate election.
On the other hand, you did cause me to go back and carefully read the court’s order. The think that jumped out at me as especially improbable is that it orders a deficit appropriation to fund the courts. Excuse me? Perhaps I’m to accustomed to thinking in terms of the 11th amendment and the federal courts, but the usual routine when something involves another branch’s jurisdiction at such a fundamental level (e.g. ordering the money funded at a deficit level) I don’t think this is the way it’s usually handled– shouldn’t the court have said: “We are going to stay open under our constitutional obligation to have open courts. You guys– particularly the legislature which has the appropriation power– figure out how to fund it.”
There’s another issue that’s troubling me about all this…
The Constitution requires a balanced budget – but not a balanced judiciary budget. Are they saying “we don’t care who you short for our sake, just don’t short us because you can’t?” I think so. Further, who wants to be a vendor to the Court right now? Not I. If they order a deficit budget, are they telling their vendors that we may not have the money to cover our checks? Can the Supreme Court order the Treasurer to issue a check to Lexis Nexis or an court reporter?
Some men know that a time comes when leaders have to color outside the lines. Shocks hell outta smaller, more insular men. Some people lead marches. Others mark time. The court’s order just might separate the marchers from those just marking time. Nunlee will be one of those merely stomping up and down on the same spot. That’s all he ever has done, and ever will do. His intellectual horizon ends right at the tip of his nose. Same as Barbour’s.
In my opinion, … of course
I think there’s a difference between ordering the governor not to cut their budget, and mandating a deficit appropriation. Without researching it I think they can do the former but not the latter which infringes on the legislature’s prerogative. In that regard I don’t think they did order one, merely observed that it would be required.
Query: Couldn’t the Court order a filing fee surcharge under its rule making power if it needed additional funds?
Just a thought.
NMC, I get the notion from the fact that the Governor is co-equal with the Supreme Court, and the Governor is acting within his official Executive capacity. When the Governor is faithfully discharging his own, separate Constitutional functions, the Supremes are without any authority over him. Could the Supremes enter an order requiring the Legislature to perform some act and then, if the Legislature refused to act, hold the Legislature in contempt? Nope. If the Legislature and the Governor both agree that an across-the-board cut is necessary, then the Supremes have to accept that, like it or not. If they were so inclined, the Legislature, by a 2/3rds vote, could reduce the Supreme Court down to a single justice.
Observer, it would take a 2/3rds vote of both houses and approval by a majority of the voters at a general or special election before it becomes part of the constitution. See Article 15, section 273 of the Mississippi Constitution. I don’t see the people voting for that one.
Of more immediate concern would be Article 4, section 53, “Removal of judges for reasonable cause,” which provides:
Barbour would certainly get 2/3rds of the spineless Senate; who thinks he could win 2/3rds of the House on this issue?
And Barbour would get to appoint all the successor judges, so you could be sure the problem would not recur. The other consequences of wholesale replacement of the Court by Barbour loyalists are too fearsome to consider.
Observer @ 7:34 pm: They absolutely have the power to enjoin unconstitutional conduct by either the executive or legislative branches and have the inherent authority to hold any and all public officials in contempt for refusals to abide by it’s orders. It’s fundamental. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Enforcement could be a problem, but I wouldn’t want to be a public official with national aspirations who refused to abide by a lawful judicial order.
somslawyer @ 7:53 pm: The “nuclear option” you identify while theoretically available would be a political disaster for the Governor. The prospect of nine elected and generally well-liked and affable Supreme Court Justices with their counsel excoriating the Governor in front of the legislature would quickly turn into a nightmare for him. Plus, I wonder if that provision would pass muster under the Voting Rights Act.
All in all, the budget for the judiciary is so small as a percentage of total spending, I think you’ll see cuts elsewhere with the judiciary “voluntarily” tightening the belt another notch again.
Observer, you’re failing to understand that the Supreme Court really by definition gets the last word– if it says “the law says the Governor doesn’t get to do this,” that’s the law, whatever you, the Governor, or others think, and they can enforce the law with contempt power. By definition, if they say “the Governor can’t do this,” an attempt by the Gov to do that act is not ” faithfully discharging his own, separate Constitutional functions.”
Either you must think we have a different three-branch structure than the US Constitution, or you disagree with Marbury vs. Madison and judicial review, I gather.
The Governor is probably taking the counsel from his advisers and perhaps the Attorney General that matches the above offer by the Hon. Judge NMCommentator. He may have 2 obey the order but give a public speech down the road after the 20th consecutive monthly revenue shortfall that takes them 2 task like the President did with the Justices on the front row in House chamber. He might thus identify more closely with the President and his limited power.