Barbour v. State

Citation974 So.2d 232
Decision Date06 February 2008
Docket NumberNo. 2008-EC-00115-SCT.,2008-EC-00115-SCT.
PartiesHaley BARBOUR, Governor of the State of Mississippi v. The STATE of Mississippi ex rel. Attorney General Jim HOOD.
CourtUnited States State Supreme Court of Mississippi

Hite Colby Lane, John C. Henegan, Michael B. Wallace, Donna Brown Jacobs, Patrick Ryan Beckett, Robert M. Frey, Jackson, attorneys for appellant.

Office of the Attorney General by Harold Edward Pizzetta, III, Ricky G. Luke, Meredith McCollum Aldridge, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. On December 20, 2007, Governor Haley Barbour ("Governor") issued a Writ of Election establishing November 4, 2008 (a date on which a general congressional election is set), as the date for the special senatorial election to fill the vacancy created by United States Senator Trent Lott's resignation. Thereafter, Attorney General Jim Hood ("Attorney General") filed suit in the Circuit Court of Hinds County, Mississippi, First Judicial District ("circuit court") alleging that the Writ of Election violates the United States Constitution, the Mississippi Constitution, and Mississippi Code Annotated Section 23-15-855. The Attorney General specifically sought a writ of mandamus, prohibition, injunctive relief, and/or a declaratory judgment voiding or nullifying the Writ of Election, and requiring that a special election be held within ninety days of the Governor's proclamation. Following a hearing on January 14, 2008, the circuit court issued a "Memorandum Opinion and Order" which granted judgment against the Governor, opining that the Writ of Election violated the United States and Mississippi Constitutions and the statutory laws of this state, and declaring the Writ of Election was "a nullity, being void ab initio." The circuit judge further opined that the Seventeenth Amendment to the United States Constitution and Section 23-15-855 "constitute legislative mandates that . [the] Senate vacancy election be held within ninety (90) days of the Governor's December 20, 2007 Proclamation of Writ of Election, i.e., on or before March 19, 2008[.]" From that ruling, the Governor appeals.1

FACTS

¶ 2. On November 26, 2007, Senator Lott publicly announced his intention to retire. Thereafter, State Representative Thomas Reynolds, the Chairman of the Apportionment and Elections Committee, requested an official opinion from the Attorney General on the appropriate timing of the special election if the senatorial vacancy occurred on or before December 31, 2007. On December 17, 2007, an Attorney General, Opinion was issued, concluding that:

Section 23-15-855 (1972)[2] is unambiguous. If the effective, date of the resignation is after the 2007 General Election,[3] but before January 1, 2008, the Governor must, within 10 days of receiving notice of the vacancy, issue his proclamation setting the election within 90 days from when the proclamation is issued. Miss. Att'y Gen. Op. No. 07___ (December 17, 2007).

¶ 3. On December 20, 2007, official notice of Senator Lott's resignation was received from the Secretary of the United States Senate. That same day, the Governor issued the Writ of Election, setting November 4, 2008, as the date for the special election to fill the senatorial vacancy, as it "occurred in a year in which there shall be a general state or congressional election ...."4 On December 31, 2007, the Governor appointed then-Congressman Roger Wicker to serve as a temporary appointee for the Senate seat.

¶ 4. On January 2, 2008, the Attorney General filed a "Complaint for Declaratory Judgment and Other Relief' in the circuit court. According to the Complaint, the Attorney General, "[a]s the chief legal officer of the State, ... brings this litigation ... on behalf of the State of Mississippi to protect interests of statewide and critical importance." The Complaint alleged that the Writ of Election issued by the Governor violated Article I, Section 4 of the United States Constitution; the Seventeenth Amendment to the United States Constitution; Article 1, Section 2 of the Mississippi Constitution; Article 4, Section 33 of the Mississippi Constitution; Article 4, Section 103 of the Mississippi Constitution; and Mississippi Code Annotated Section 23-15-855. The Attorney General asserts that the harm to the public is "be[ing] without a popularly elected replacement senator for at least 322 days (10 months and 17 days)...."5 That same day, the Attorney General also filed a "Motion for Injunctive, Declaratory, and Other Relief." In that motion, the Attorney General pleaded that:

the State of Mississippi has met the burdens required for a final declaratory judgment on the merits and for a preliminary and permanent injunction .... [T]he Governor's act of calling a special election in November 2008 is in conflict with clear statutory directives, infringes on the authority of the Legislature, and denies voters their state and federally guaranteed rights to a popularly elected senator. The denial of the constitutional and statutory rights to an election in ninety days is irreparable.

¶ 5. The Governor filed an "Opposition to Attorney General Hood's Motion for Injunctive, Declaratory, and Other Relief," a "Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the alternative, for Judgment on the Pleadings," and an "Answer and Defenses to Complaint for Declaratory Judgment and Other Relief." In these pleadings, the Governor asserted that the Attorney General lacked standing, that the circuit, court lacked subject matter jurisdiction, and that the Complaint was without merit. The Governor added that he "acted properly under applicable Federal and state law and is therefore entitled to a judgment on the pleadings[.]"6

¶ 6. On January 14, 2008, the circuit court issued its "Memorandum Opinion and Order." In its "Memorandum Opinion," regarding the issue of whether the Attorney General had standing to bring the lawsuit, the circuit judge was:

not persuaded by the Governor's assertions that the Attorney General does not have the authority to bring this action. The Mississippi Supreme Court has held that the Attorney General has all powers invested in the attorney general at common law, in addition to that authority conveyed by statute, [see Dunn Constr. Co. v. Craig, 191 Miss. 682, 2 So.2d 166, 175 (1941) ], and under the common law the Attorney General has the "right to institute, conduct, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of public rights." [Capitol Stages, Inc. v. State ex rel. Hewitt, 157 Miss. 576, 591, 128 So. 759, 763 (1930) ]. "Paramount to all his duties, of course, is his duty to protect the interests of the general public," [State v. Culp, 823 So.2d 510, 514 (Miss. 2002),] and "[new matters involve more public interest than the process of electing a new United States Senator." [State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 385 (N.D.1992) ].

The circuit judge then opined that "[n]o writ of injunction or mandamus or other judicial remedial writ will run against the Governor ...."7 As such, the circuit judge concluded that:

the Attorney General's motion for preliminary injunctive relief should be denied. Moreover, the Governor's alternative motions to dismiss or for judgment on the pleadings should be granted with respect to those portions of the Attorney General's complaint which seeks a writ of mandamus, other remedial writs, or injunctive relief of any kind.

The circuit judge further opined that he had "full authority to issue a declaratory judgment against the chief executive authority."8 According to the circuit judge, "[i]f a duty is positively imposed upon [the Governor] by constitutional or statutory mandate, and if he fails to carry out that mandate, the Court may so declare his malfeasance."

¶ 7. The circuit judge then framed the central issue as follows: lilt is not the act of the call itself challenged.... It is the timing of the vacancy election being called that is challenged, and the Governor is duty bound to respect the timing as the Legislature has directed." Applying his version of the "common and ordinary meaning" of terms, the circuit judge then concluded "the meaning of the statute leaps out at the reader[,]" but not before editing the text, by revising the wording of the statute, to read as follows:

the exception to the ninety (90) day requirement is clearly read to apply only when the vacancy occurs "in a [calendar] year that there will be held a general state or congressional election, in which event the Governor's proclamation must designate the general election day[9] as the time for electing a senator ...."

(Emphasis added). The circuit judge then opined "that the provisions of Section 23-15-855(1) are plain, clear, and unambiguous, rendering it inappropriate to look at anything beyond the language of the statute." Finally, the circuit judge opined "that the proclamation or Writ of Election setting the election for a time in derogation of Section 23-15-855 is ... in contravention of the Seventeenth Amendment. Because of this unconstitutionality, the proclamation or Writ of Election is hereby declared a nullity and void."

¶ 8. The Order of the circuit court:

awarded declaratory judgment against the Governor, pursuant to MRCP 57, to wit:

(a) That the terms and provisions of the Seventeenth Amendment of the Constitution of the United States and Miss Code Ann. Section 23-15-855, constitute legislative mandates that, under the undisputed facts of this case, the subject Senate vacancy election be held within ninety (90) days of the Governor's December 20, 2007 Proclamation of Writ of Election, i.e., on or before March 19, 2008;

(b) That portion of the Governor's December 20, 2007 Proclamation or Writ of Election setting the subject Senate vacancy election for November 4, 2008 is in conflict with, and in derogation of, the aforesaid constitutional and statutory provisions;

...

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    ...or for that matter, any governmental official, can exercise power beyond their constitutional authority.” Barbour v. State ex rel. Hood, 974 So.2d 232, 239 (Miss.2008). ¶ 82. Certainly, no one would argue that a court could investigate and determine the wisdom or propriety of a governor's a......
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