In re Hooker

Citation87 So.3d 401
Decision Date17 May 2012
Docket NumberNo. 2012–IA–00166–SCT.,2012–IA–00166–SCT.
PartiesIn re Charles HOOKER, David Gatlin, Nathan Kern, Anthony McCray, Kirby Tate, Katherine Robertson, Aaron Brown, Joshua Howard, and Azikiwe Kambule.
CourtUnited States State Supreme Court of Mississippi

OPINION TEXT STARTS HERE

Thomas M. Fortner, Jackson, Erik M. Lowrey, Hattiesburg, Richard Anthony Filce, Sylvia S. Owen, New Albany, Luther T. Munford, Jackson, Robert Gregg Mayer, Fred L. Banks, Jr., Jackson, Charles Willis Pickering, John M. Colette, Jackson, Edward Blackmon, Jr., Canton, Cynthia Ann Stewart, Aafram Yaphet Sellers, Jackson, attorneys for appellants.

Office of the Attorney General By Jim Hood, Alexander Kassoff, Meredith McCollum Aldridge, Bridgette Williams Wiggins, David K. Scott, attorneys for appellee.

EN BANC.

DICKINSON, Presiding Justice, for the Court:

¶ 1. At the outset, we wish to state that this case is not about whether the governor is above the law. He clearly is not, and any implication in the dissents, or elsewhere, that he is—or that a majority of this Court believes he is—is incorrect. This case is about whether this Supreme Court has the right, authority, and power to declare itself superior to, and above, both the other two branches of government in all matters of constitutional compliance. 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.

¶ 2. Attorney General Jim Hood asks the judicial branch of government to void several pardons, alleging the applicants failed to publish notice as required by Section 124 of the Mississippi Constitution, which states:

In all criminal and penal cases, excepting those of treason and impeachment, the governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.1

After we received this appeal, Governor Barbour—who issued the pardons—submitted an amicus curiae brief, and we allowed his counsel to participate in oral argument. At oral argument, we asked Attorney General Hood to point out any pardon that was not facially valid, and he could not.

¶ 3. The parties and Governor Barbour have presented numerous issues for our consideration, including: whether those who did not apply for a pardon were required to publish notice; whether the governor—and not the convicted felons—applied for some of the pardons; whether some of the pardons had any applicant at all; whether the publication provision requires four or five weekly publications; whether the governor, the attorney general, or the pardonees have the burden of proof; and whether the attorney general is estopped from objecting to the pardons.

¶ 4. The contrasting views on these and other issues were forcefully and passionately argued in an array of briefs, dissents, and in an extended oral argument. 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.

¶ 5. No judicial duty is more central to the proper operation of our system of government than is our duty to decide this issue correctly. In carrying out this duty, as we must, and respecting the clear constitutional provisions that separate our powers from the governor's powers, we are compelled to hold that—in each of the cases before us—it fell to the governor alone to decide whether the Constitution's publication requirement was met.

BACKGROUND FACTS AND PROCEEDINGS

¶ 6. During his last days in office, Governor Haley Barbour granted executive clemency to 215 persons, most of whom were no longer in custody. Of the twenty-six persons in custody, Governor Barbour granted ten full pardons; thirteen medical releases; one suspension of sentence; one conditional, indefinite suspension of sentence; and one conditional clemency.

¶ 7. Attorney General Jim Hood filed a civil action in the Circuit Court of the First Judicial District of Hinds County, alleging he had “reason to believe that former Governor Barbour's attempted pardons ... were in violation of Section 124 of the Mississippi Constitution.” Section 124 requires an applicant for a pardon to publish a petition stating why the pardon should be granted.

¶ 8. The attorney general initially named five defendants, but then requested the circuit judge to declare all pardons it found to be in violation of Section 124 null, void, and unenforceable. The circuit judge issued a temporary restraining order (TRO), requiring every person granted a pardon by Governor Barbour to provide the court “sufficient proof [of publication] consistent with Section 124 of the Mississippi Constitution....” The TRO also prohibited the Mississippi Department of Corrections' releasing any person pardoned by Governor Barbour, until the Department had provided the court sufficient proof of acceptable Section 124 publication.

¶ 9. The circuit judge extended the TRO and ordered the defendants to appear at a preliminary injunction hearing. The appellants petitioned this Court for permission to file an interlocutory appeal. We granted the appellants' petitions, stayed all proceedings in the circuit court, and ordered that the trial court's extended TRO remain in effect until further order of this Court.

ANALYSIS

¶ 10. Governments are operated by people. And no government has ever existed without disputes among those in positions of power. Some disputes—perhaps most—are settled by compromise. But when a compromise cannot be reached, ultimate authority must rest somewhere to settle the disputed question. In some nations, that final authority rests with a king. For others, such decisions are made by a military leader. But by deliberate design, our system of government is different.

¶ 11. Our Constitution divides governmental power among three branches, or departments, of government. And so important did the drafters regard the separation of those powers that they addressed it in the first two sections of our 1890 Constitution:

ARTICLE 1, SECTION 1.

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.2

ARTICLE 1, SECTION 2.

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. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.3

¶ 12. Our state government was modeled after the federal system. And for fifteen years after the people ratified the Federal Constitution, the three branches of the federal government struggled with issues regarding their respective powers. Then, in 1803, the United States Supreme Court reviewed a case and rendered a landmark decision that directly addressed the separation of powers.

Marbury v. Madison4

¶ 13. As John Adams's presidency came to a close, and his Federalist Party began losing power, Thomas Jefferson—who, as a member of the “Republican–Democrat” party, opposed consolidation of power in the federal government—was due to succeed President Adams in March 1801. Adams's lame-duck Federalists—desperate to preserve power—passed the Organic Act and the Judiciary Act, which allowed Adams to appoint forty-two justices of the peace and sixteen new circuit-court justices for the District of Columbia. After Adams signed the commissions of these new judges (known today as the “midnight judges”), his Secretary of State, John Marshall (who, interestingly, was later to author Marbury v. Madison ), sealed them.

¶ 14. But when President Jefferson took office, he refused to honor the commissions because they were not delivered until after President Adams's term had expired. William Marbury, who was due a commission, applied for a writ of mandamus 5 asking the Supreme Court of the United States to compel President Jefferson's Secretary of State, James Madison, to deliver the commissions.

¶ 15. The Supreme Court held the commissions were valid and binding when signed by President Adams, but refused to grant Marbury's request for a writ of mandamus because the matter was outside the Court's original jurisdiction. 6 While the Court's disposition of Marbury's commissions issue is of little importance today, its disposition of the jurisdictional issue and its comments on the separation of powers are of central importance.

¶ 16. The jurisdictional...

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    ...Court has followed a similar trajectory in adopting a political question doctrine gleaned from the federal doctrine. In In re Hooker , 87 So.3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi ......
  • Ward v. Colom
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    • 7 Junio 2018
    ...grants courts such power, and "this Court must declare the Mississippi Constitution as it is written ...." In Re Hooker , 87 So.3d 401, 423 (Miss. 2012) (Randolph, P.J., dissenting). Turning to the separation-of-powers doctrine, the Constitution specifically vests the Legislature with autho......
  • Hatfield v. Bd. of Supervisors of Madison Cnty.
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    • 10 Agosto 2017
    ...to intervene in internal legislative procedure even when the procedures in question are prescribed by the Constitution); In re Hooker , 87 So.3d 401 (Miss. 2012) (holding that a facially valid pardon would not be set aside by the courts on a claim that a constitutional procedural requiremen......
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