Russell v. State
| Decision Date | 31 March 1975 |
| Docket Number | No. 48198,48198 |
| Citation | 312 So.2d 422 |
| Parties | Delin Ray RUSSELL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Mitchell, Rogers & Eskridge, Tupelo, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
ON MOTION
Defendant's motion requests submission of his case to a quorum of the full Court or to the whole Court sitting en banc. He challenges the validity of the order of this Court entered on July 25, 1974, authorizing the Court to sit in three divisions of three judges each, with each division having full power to hear and adjudge all cases assigned to it. 1 The motion raises the question whether three-judge divisions are authorized by the Mississippi Constitution.
Prior to 1916 the Court consisted of three judges, any two of whom constituted a quorum. Miss.Const. § 145.
In 1916 a constitutional amendment was adopted as section 145A as follows:
The Supreme Court shall consist of six judges, that is to say, of three judges in addition to the three provided for by section 145 of this Constitution, any four of whom when conveyed shall form a quorum. The additional judges herein provided for shall be selected one for and from each of the Supreme Court districts in the manner provided by section 145 of this Constitution, or any amendments thereto. Their terms of office shall be as provided by section 149 of this Constitution, or any amendments thereto.
Also in 1916, by constitutional amendment, section 149A was adopted, as follows:
The Supreme Court shall have power, under such rules and regulations as it may adopt, to sit in two divisions of three judges each, any two of whom when convened shall form a quorum; each division shall have full power to Pursuant to the last mentioned amendments the Court sat in two divisions of three judges each. It is significant that under section 145A a quorum of the six-judge Court was four, and under section 149A a quorum of a three-judge division was two. Thus, there were constitutional provisions for a quorum of the full court and a quorum of a three-judge division. Section 145A, in the first sentence, expressly stated that a quorum of the full Court was four.
hear and adjudge all cases that may be assigned to it by the court. In event the judges composing any division shall differ as to the judgment to be rendered in any cause, or in event any judge of either division, within a time and in a manner to be fixed by the rules to be adopted by the court, shall certify that in his opinion any decision of any division of the court is in conflict with any prior decision of the court or of any division thereof, the cause shall then be considered and adjudged by the full court or a quorum thereof.
In Slush v. Patterson, 201 Miss. 113, 29 So.2d 311 (1947), three of the five judges sitting reversed the case, with two judges dissenting. The case is authority for the proposition that a majority of a four-judge quorum could reverse a case, a majority of the full Court not being required. In Jefferson Standard Life Insurance Co. v. Ham, 178 Miss. 838, 173 So. 672 (1937), the Court answered a challenge to the validity of a three-judge division by holding that a three-judge division had full power to hear and determine cases brought before it. The adoption of section 149A left it to the Court to decide whether it would sit en banc or in divisions of three. Hudson v. Gulf Refining Co., 202 Miss. 331, 30 So.2d 421, cert. denied, 332 U.S. 775, 68 S.Ct. 84, 92 L.Ed. 359 (1947).
In 1950 section 145B was adopted as a part of the Constitution, as follows:
The Supreme Court shall consist of nine judges, that is to say, of three judges in addition to the six provided for by section 145A of this Constitution, any five of whom when convened shall constitute a quorum. The additional judges herein provided for shall be selected one for and from each of the supreme court districts in the manner provided by section 145A of this Constitution or any amendment thereto. Their terms of office shall be as provided by section 149 of this Constitution or any amendment thereto.
There has been no amendment to section 149A, which has remained unchanged since 1916, and the provision for a three-judge division remains in effect. The only change wrought by section 145B was to increase the number of judges to nine and raise the number of judges constituting a quorum of the full Court from four to five.
After adoption of section 145B, a motion was filed to remand to the docket for a hearing by the full Court a case which had been decided by a three-judge division before adoption of section 145B, on the ground that the judgment of the three-judge division was not a final judgment by the highest court of the state in which a decision could be had, citing 28 U.S.C.A. section 1257, and Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300 (1942). The Court overruled the motion and held that the judgment of the three-judge division was a final judgment rendered by the highest court of the state. Hays Finance Co. v. Bailey, Miss., 56 So.2d 806, appeal dismissed, 343 U.S. 959, 72 S.Ct. 1057, 96 L.Ed. 1358 (1952).
After adoption of section 145B, the Court adopted 'for the convenient dispatch of business' the procedure of sitting in divisions of five judges and provided that,
(I)n the event any Judge of the Court within fifteen (15) days after a judgment has been rendered, or an order entered by any group, or while a petition for rehearing therein is pending, shall In Ryan Supply Company v. Brett, 222 Miss. 30, 75 So.2d 721 (1954), an attack was made on the validity of the five-judge divisions. In upholding the validity of that procedure the Court noted that a case could not be decided except by the unanimous vote of the five judges in the division. The decision was based upon rules of the Court and was not an adjudication that the Court could not sit in divisions of three judges under the provisions of 149A, since that question was not before the Court.
certify in writing filed with the Clerk that in his opinion such order or judgment is in conflict with a prior decision of the Court, or of any group thereof, the order or judgment shall be set aside by order entered on the minutes of the first session of either group thereafter; and the Chief Justice shall cause the full Court, or a quorum thereof, to assemble in a conference at a convenient time for the decision of the case, and the judgment agreed on shall be entered at any sitting of any group of the Court. Rule 35, Rules of the Supreme Court (before amendment).
The validity of the three-judge division depends upon the interpretation of the word 'quorum' as used in sections 145B and 149A of the Constitution. Reading these two sections together reveals that a quorum of the full Court is five and a quorum of a three-judge division is two. If only five judges are present when Court convenes as a full Court, it can proceed to transact business and decide cases, as provided in section 145B. But only two judges of a three-judge division constitute a quorum with power to adjudge cases subject to the exceptions enumerated in section 149A. (However, under the order of July 25, 1974, and under Rule 35, the Court sits in divisions only when three judges are present.)
The last sentence of section 149A provides that 'In event the judges composing any division shall differ as to the judgment . . . the cause shall then be considered and adjudged by the full court or a quorum thereof.' Section 149A recognizes a quorum of the full Court (five) and also provides that a quorum of a division of three judges shall be two. Not only is there harmony between sections 145B and 149A, but there is also harmony between the provisions in section 149A providing for a quorum of a division and a quorum of the full Court.
There is no significance, as far as the question of the validity of three-judge divisions is concerned, that section 149A provides for 'two' divisions of three judges each. At the time of the adoption of section 149A the Court was increased to six judges. If the word 'two' had been omitted there would have been no change in the meaning. The number of judges comprising a division was important; there could only be two divisions so the word 'two' was surplusage. Of course, the Court, by administratively rotating the judges, could now sit in two divisions of three judges each, and thus follow the letter for section 149A. This would merely exalt form over substance. It is administratively more efficient to have three divisions instead of two, and substantively there is no difference between having two divisions and having three.
The Court consisted of three judges until 1916. From 1916 to 1952 the Court consisted of six judges who sat in divisions of three. So it is that in all but twenty-two years of the state's history, all, or nearly all, decisions of the Supreme Court have been by three judges. Much of the volume of judicial decisions of both state and federal courts is accomplished in panels or divisions of three judges.
The Court decided to sit in three-judge divisions only after the most deliberate study and consideration of all aspects of the question. Rule 35, Rules of the Supreme Court as amended, goes much further than the Constitution requires in assuring that cases are brought before the full Court for en banc hearing whenever it appears appropriate. These provisions are Although not necessary to this decision, it is appropriate to state that all petitions for rehearing are adjudged by the full Court; also, no written opinion is handed down until each of the nine judges has read it and either concurred therein or noted his dissent.
provided in Rule 35: (1) That the judges are rotated as often as administratively practical; (2) That cases are considered and adjudged by the full Court (a) whenever there is a difference between the judges of the...
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State v. Mills, s. 96-337
...five in number, would control the decision to be rendered by the entire group of nine." Id. 75 So.2d at 721; see also Russell v. State, 312 So.2d 422, 424 (Miss.1975) (reaffirming Ryan Supply We recognize, as appellants argue, that this is a deliberative body and collective deliberation can......