Fordice, In re, 96-M-00114-SCT

• Citation: 691 So.2d 429
• Decision Date: 13 March 1997
• Docket Number: No. 96-M-00114-SCT,96-M-00114-SCT
• Parties: In re Kirk FORDICE, as Governor of the State of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 429

691 So.2d 429

In re Kirk FORDICE, as Governor of the State of Mississippi.

No. 96-M-00114-SCT.

Supreme Court of Mississippi.

March 13, 1997.

Philip W. Gaines, Steven W. Wall, Currie Johnson Griffin Gaines & Myers, Jackson; Mark Garriga, Jackson; Greg Hinkebein, Jackson, W. Wayne Drinkwater, Jr., Lake Tindall & Thaxton, Jackson, for Petitioner.

Michael C. Moore, Attorney General, Jackson; William Allain, Jackson; Richard F. Scruggs, Charles J. Mikhail, Scruggs Millette Lawson Bozeman & Dent, Pascagoula, for Respondent.

Deidra D. Jones, Brooke Ferris, Norman Gene Hortman, Jr., Gibbes Graves Millins Bullock & Ferris, Laurel; Jim Warren, III, Waycaster & Warren, Jackson; Raymond D. Cotton, Oppenheimer Wolff & Donnelly, Washington, DC; David W. Baria, Hubbard Pierce & Baria, Jackson; Scott Harshbarger, Attorney General of Massachusetts, Boston, MA; Sharon L. Scott, Thomas H. Green, Ass't Attorneys General, Boston, MA; Robert A. Butterworth, Attorney General of Florida, Tallahassee, FL; Richard P. Ieyoub, Attorney General of Louisiana, Baton Rouge, LA; Jeffrey B. Pine, Attorney General of Rhode Island, Providence, RI; Jeffrey L. Amestoy, Attorney General of Vermont, Montpelier, VT, for Amicus Curiae.

En Banc.

SMITH, Justice, for the Court:

This matter is before this Court on Governor Fordice's invocation of the original jurisdiction of this Court in an attempt to assert authority in general over certain duties concerning the Division of Medicaid and in particular over the conduct of a certain lawsuit pending in the Chancery Court of Jackson County. The Governor specifically asks that this Court order the Attorney General of this State to perform certain acts and to refrain from performing others. After review of the petitions, responses, briefs of amici curiae and oral argument, this Court finds that it is without jurisdiction to act as a trial court in this matter, and dismisses the Governor's petition and supplementary petition.

STATEMENT OF FACTS

This petition was filed on February 16, 1996, as an original action in this Court. Governor Fordice ("Petitioner") alleges that as Governor he is

vested with the duty, responsibility, and authority to administer the Division of Medicaid on behalf of the State of Mississippi and in accordance with the Mississippi Medicaid Plan; ... with the exclusive authority to appoint an Executive Director for the Division of Medicaid, with such Executive Director to serve at the will and pleasure of the Governor, and subject to the direction and control of the Governor; ... with the exclusive authority and responsibility to effect settlement agreements for recovery of Medicaid funds, and to execute the release of any and all claims held or potentially held for recovery of Medicaid funds expended by or through the State of Mississippi. The Division of Medicaid, as a division of the Office of the Governor, and as a State agency administered In contrast, the Governor alleges that the Attorney General ("Respondent"),

by the Governor, has the exclusive right to make claim for or bring civil suit for reimbursement of sums paid by the Division of Medicaid for medical assistance, treatment, or otherwise in accordance with the Mississippi Medicaid Plan.

[o]ther than fulfilling the orders and instructions of the Governor, defending suits filed against the Division of Medicaid, providing legal counsel and advice to the Governor, reviewing and providing written certification that agreements between the Division of Medicaid and the Department of Heath and Human Services are in accordance with the terms and requirements of Title 14, Article 13, of the Mississippi Code, and to grant approval of the Governor's hiring of contingency fee private legal counsel for suits brought in the name of the Division of Medicaid, ... has no legal duty, authority, nor right to act as or on behalf of the Office of the Governor, Division of Medicaid.

As a result, the Petitioner argues that Cause No. 94-1429, filed by the Respondent in the Jackson County Chancery Court, is unauthorized, yet the Respondent has refused to cease prosecuting the suit.

Petitioner now asks that this Court issue a declaratory judgment to the effect that:

A. The Governor is the administrator of the Division of Medicaid;

B. Suits brought for recovery of Medicaid funds must be brought in the name of the Division of Medicaid by the administrator of the Division of Medicaid;

C. Private, legal counsel that are retained/employed on a contingency basis to represent the interests of the Division of Medicaid must be employed by the Division of Medicaid and the administrator thereof, subject to the approval of the Attorney General;

D. Insofar as Cause No. 94-1429 in the Chancery Court of Jackson County, Mississippi, involves a suit for damages consisting of Medicaid funds and the reimbursement therefor, such lawsuit and the actions and prosecution thereof by the Attorney General, as "Mike Moore, Attorney General ex rel State of Mississippi," and the actions of the Attorney General relating to such filing and prosecution, are unauthorized and outside the legal authority of the Attorney General, until instructed and authorized by the Governor to prosecute such civil action on behalf of and in the name of the Division of Medicaid;

E. The Division of Medicaid is not subject to res judicata, collateral estoppel, sanction, release, accord and satisfaction, nor other legal effect of any sort that may potentially affect a party to such cause;

F. The Attorney General is subject to the Constitution and Laws of the State of Mississippi, and has no valid legal authority to file civil actions nor otherwise take actions that are contrary to and outside of the parameters of the powers of his office as vested by the people through validly enacted Mississippi law.

The Petitioner also asks this Court to issue a writ of mandamus and prohibition requiring the Attorney General and legal counsel acting at his direction:

G. To cease and desist from actions for recovery of Medicaid funds until employed and/or directed to do so by the Governor;

H. To notify the trial court and all parties to the unauthorized lawsuit that the Division of Medicaid is not a party to such lawsuit and that no Medicaid funds are included in the damages claims of such lawsuit;

I. To limit the exercise of the power, resources, and position of the Attorney General's office in accordance with the provisions of the Constitution and Laws of the State of Mississippi;

J. To refrain from using the power and position of the Attorney General's office to file and prosecute civil suits, restrain State personnel from fulfilling the duties of their respective offices or unlawfully interfere therewith, retain private counsel for representation of Mississippi and/or agencies/divisions thereof, and/or purportedly execute contracts for legal employment on a contingency basis, outside of the provisions of Mississippi law; and K. To refrain from legal representation of the interests of the Division of Medicaid, and/or other action relating thereto, inconsistent with the expressed wishes and instructions of the Governor as administrator of the Division of Medicaid....

On May 23, 1996, Petitioner filed a Supplemental Petition for Writ of Mandamus and Prohibition with this Court alleging that the Respondent entered into an unauthorized settlement with certain defendants in the suit pending in Jackson County Chancery Court.

DISCUSSION OF LAW

I.

The Petitioner argues that this controversy is within the original jurisdiction of this Court in accordance with Miss.Code Ann. § 9-1-19 (Supp.1995), which states:

The judges of the Supreme and circuit courts and chancellors and judges of the Court of Appeals, in termtime and in vacation, may severally order the issuance of writs of habeas corpus, mandamus, certiorari, supersedeas and attachments, and grant injunctions and all other remedial writs, in all cases where the same may properly be granted according to right and justice, returnable to any court, whether the suit or proceedings be pending in the district of the judge or chancellor granting the same or not. The fiat of such judge or chancellor shall authorize the issuance of the process for a writ returnable to the proper court or before the proper officer; and all such process or writs may be granted, issued and executed on Sunday.

Petitioner also cites M.R.A.P. 21, which provides in part:

(a) Writs and Process, Supreme Court. The Supreme Court shall issue all writs and process necessary for the exercise and enforcement of its appellate jurisdiction and may enforce its mandates by fine and other appropriate sanctions.

....

(c) Mandamus or Prohibition to a Judge or Judges; Petition for Writ; Service and Filing. Application for a writ of mandamus or prohibition directed to a judge or judges shall be made by filing a petition with the clerk of the Supreme Court with proof of service on the judge or judges and on all parties to the action in the trial court.

A petition for writ of mandamus, writ of prohibition, or other extraordinary writ shall not bear the name of the judge or judges, but shall be entitled, In re: ____________, Petitioner.

....

(e) Other Extraordinary Writs. Application for extraordinary writs other than those provided for in subdivisions (c) and (d) of this rule shall be made by petition filed with the clerk of the Supreme Court with proof of service on the parties named as respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (c) and (d) of this rule.

The Petitioner relies on several cases in support of the proposition that this action does not lie solely against a judge, but may be sought against any "judicial or quasi-judicial officer" in exercise of this Court's "original jurisdiction." Petitioner cites Holmes v. Board of Supervisors, 199 Miss. 363, 24 So.2d 867 (1946); Owens v. Reese, 203 Miss. 322...