Dye v. State ex rel. Hale, 57895

• Decision Date: 29 April 1987
• Docket Number: No. 57895,57895
• Citation: 507 So.2d 332
• Parties: Brad DYE, Lieutenant Governor of the State of Mississippi and President of the Senate of the State of Mississippi v. The STATE of Mississippi, ex rel. Richard Stephen HALE and Gene Taylor, Members of the Senate of the State of Mississippi.
• Court: Mississippi Supreme Court

Page 332

507 So.2d 332

Brad DYE, Lieutenant Governor of the State of Mississippi and President of the Senate of the State of Mississippi v. The STATE of Mississippi, ex rel. Richard Stephen HALE and Gene Taylor, Members of the Senate of the State of Mississippi.

No. 57895.

Supreme Court of Mississippi.

April 29, 1987.

Rehearing Denied June 3, 1987.

Edwin Lloyd Pittman, Atty. Gen. and Robert L. Gibbs, Asst. Atty. Gen., Jackson, for appellants.

Paul M. Neville, Jackson, for appellees.

Luther T. Munford, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for amicii curiae.

En Banc.

ROBERTSON, Justice, for the Court:

I. Overview

The powers of the Lieutenant Governor of the State of Mississippi are at issue this day. Historically considered enigmatic if not schizophrenic by the political scientist, a fifth wheel on the wagon of government and often a political graveyard in the parlance of the practical, the office of our Lieutenant Governor has in recent years grown greatly in influence and effect, so much so that two Senators have called upon the Judicial Department of the state to consider critically the extent, nature, source--and legality--of powers now being exercised by the present occupant of that office.

The Circuit Court held the Lieutenant Governor an officer of the Executive Department and as such, by our constitutional mandate that the powers of government be separate, precluded from the exercise of any powers properly belonging to the Senate, excepting only those powers expressly conferred upon him by the Constitution. We take a different view. The Senate has by constitutional authority broad powers to make rules regarding the conduct of its business. Constitutionally, the Lieutenant Governor is the President of the Senate. II. Proceedings Below

As such he is one eligible to have conferred upon him such authority as the Senate by rule may from time to time provide. As explained more fully below, we reverse and render on the principal appeal.

On January 24, 1986, Senators Richard Stephen Hale ¹ and Gene Taylor ² filed their complaint in the Circuit Court of Hinds County, Mississippi, naming as defendant, Lieutenant Governor Brad Dye. In their complaint the Senators sought a declaratory judgment that Senate Rules 5, 6, 7, 17, 18, 19, 36, 37, 38, 48, 65, 74 and 75 ³ violate Article I, Sections 1 and 2 (separation of powers provisions) of the Mississippi Constitution of 1890, and that, insofar as Lt.

Gov. Dye exercises powers under the purported authority of those rules, he proceeds in violation of the Constitution. Principal among the rules and power exercises challenged are those involving the Lieutenant Governor's almost plenary powers respecting appointment of committees and referral of bills to committees. The vice said to be found in these rules is that they constitute an unconstitutional delegation of legislative power to the Lieutenant Governor who is a member of the Executive Department of government. The Complaint finally sought entry of an order enjoining Lt. Gov. Dye from exercising the powers conferred on him by these rules.

Following Lt. Gov. Dye's answer, Senators Hale and Taylor filed a motion for judgment on the pleadings. Dye responded, opposing that motion and filing his motion for summary judgment. Thereafter, Senators Wendell Hobdy Bryan, William W. Canon, Walter A. Graham, Alan M On November 4, 1986, the Circuit Court entered a declaratory judgment holding that Lt. Gov. Dye was a member of the Executive Department of the government, that Senate Rules 7, 36, 37, 38, 48, 74 and 75 were unconstitutional, and that insofar as Lieutenant Governor Dye exercised powers provided in those rules he exercised legislative powers prohibited to him by Sections 1 and 2 of the Constitution. The attack upon Senate Rules 5, 6, 17, 18, 19 and 65 was rejected.

Heflin, C.R. Montgomery and F.M. Smith, Jr. filed a motion for leave to file a brief and present argument as amicii curiae, which the Circuit Court granted.

Lt. Gov. Dye timely perfected the present appeal, challenging so much of the declaratory judgment as invalidated Senate Rules 7, 36, 37, 38, 48, 74 and 75 and held unlawful his exercise of the powers conferred by those rules. Senators Hale and Taylor have cross-appealed and attack so much of the judgment below as left in force Senate Rules 5, 6, 17, 18, 19 and 65.

Senators Bryan, Canon, Graham, Heflin, Montgomery, and Smith have filed a brief as amicii curiae, supporting in substantial part the view of Lt. Gov. Dye and urging reversal.

III. Pre-Merits Issues

A. Subject Matter Jurisdiction

Lieutenant Governor Dye first objects to the Circuit Court's determination that it had subject matter jurisdiction of this action. The essence of the point, as we perceive it, is that the suit brought by Sens. Hale and Taylor, as Plaintiffs, was in the nature of a quo warranto action and that, because of certain alleged deficiencies in the Senators' efforts bring themselves within the strictures of that ancient writ, the complaint should have been dismissed. Blended with these apples are an orange and a grapefruit in the form of a challenge to the Senators' standing to sue and the claim that only the Attorney General could bring a suit such as this--the same Attorney General, we might add, who has elected to represent Lt. Gov. Dye and present to us this assorted pre-merits procedural fruit basket.

We begin with the proposition that the subject matter jurisdiction, a non-confessable jurisdiction, turns upon the well pleaded allegations of the complaint. In Re City of Ridgeland, 494 So.2d 348, 350 (Miss.1986); Brown v. Brown, 493 So.2d 961, 963 (Miss.1986); American Fidelity Fire Insurance Co. v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss.1985). Our circuit courts are courts of general subject matter jurisdiction having authority to hear and adjudge all "matters civil" subject matter jurisdiction of which is not vested in some other court. Miss. Const. Art. 6, § 156 (1890); Miss.Code Ann. § 9-7-81 (1972); Hall v. Corbin, 478 So.2d 253, 255 (Miss.1985). Considering the nature of the primary claim, we find no exclusive vesting in any other court of jurisdiction to hear and decide claims that an officer of one department of government is exercising power constitutionally vested in another department. Considering the nature of the relief sought, that the Lieutenant Governor's exercise of certain powers in the Senate be declared unconstitutional and that he hereafter "be debarred from exercising the ... [same]," we find the case akin to those historically within circuit court jurisdiction, to-wit: quo warranto proceedings. See Miss.Code Ann. § 11-39-3 (1972). Subject matter jurisdiction has not been altered by the procedural demise of the quo warranto writ. ⁴ See Rules 2, 81(c) and 82(a) In their complaint Sens. Hale and Taylor allege that Lt. Gov. Dye is a member of the Executive Department of the government and that he is exercising legislative powers within the Senate, one house of the Legislative Department of government in violation of Miss. Const. Art. 1, §§ 1 and 2 (1890). Sens. Hale and Taylor thus state a claim upon which relief can be granted, see Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss.1985), much the same as was done in the converse setting of Alexander v. State, ex rel. Allain, 441 So.2d 1329 (Miss.1983), wherein it was alleged that members of the Legislative Department of government were exercising powers at the core of and in the upper echelons of the Executive Department of government. It is a claim which, if proved and if not thwarted by defenses, would entitle Sens. Hale and Taylor to relief.

                Miss.R.Civ.P.  Without question, the allegations of the complaint were sufficient to confer upon the Circuit Court authority to proceed further.   See Penrod Drilling Co. v. Bounds, 433 So.2d 916, 924-25 (Miss.1983) (concurring opinion)
                

B. The Senators' Standing To Sue

The question of standing we resolve similarly against Lt. Gov. Dye, that also being a matter wherein we look only to the allegations of the complaint. Again, we are forbidden to assume any view of the correctness or ultimate merits of that complaint. Sens. Hale and Taylor allege that, by his exercise of powers in the legislative branch, Lt. Gov. Dye has deprived them of power and prerogatives lawfully theirs as Senators. The ongoing actions of Lt. Gov. Dye certainly have an adverse impact upon Sens. Hale and Taylor sufficient to confer upon them standing to sue. See Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098, 1105-09 (Miss.1987); see also Bowsher v. Synar, 478 U.S. ----, ----, 106 S.Ct. 3181, 3186, 92 L.Ed.2d 583, 593 (1986). We refuse to relegate to the Attorney General either the exclusive authority to bring a suit such as this or the discretion whether and how that authority should be exercised. Cf. Frazier v. State of Mississippi, 504 So.2d 675, 691-92 (Miss.1987).

C. Justiciability

Lt. Gov. Dye also attacks the Circuit Court's jurisdiction on the grounds that this case involves a political question and therefore a non-justiciable controversy. Specifically, Dye argues that courts have no authority to examine rules of procedure passed by a legislative body for the governance of its own deliberations, since each body is supreme within the powers conferred by the Constitution, citing 16 Am.Jur.2d Constitutional Law §§ 312, 31 and Witherspoon v. State Ex Rel. West, 138 Miss. 310, 103 So. 134 (1925).

Sens. Hale and Taylor counter with the argument that their suit presents a claim of rights arising under the Mississippi Constitution of 1890 and as such can only be decided by the Judicial Department of this state's government. Alexander v. State Ex Rel. Allain, 441 So.2d 1329 (Miss.1983). See also, Ex Parte Alabama Senate, 466 So.2d 914, 919-21 (Ala.1985) (dissenting opinion).

Without doubt we will as a general rule decline adjudication of...