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As the 1980s began, some critics alleged that Mississippi’s government was afflicted with inertia, and that the reason for this standstill was the unchallenged power of the Legislature over the other branches. Calls to radically amend the Mississippi Constitution of 1890, or to replace it altogether, were commonly issued by commentators, but silenced in the legislative process. 

The Mississippi Supreme Court responded. It began with a series of changes to the judicial process itself. The business community had been unsuccessful in securing legislative passage of efforts to align the state’s civil procedure code with the principles of the Federal Rules of Civil Procedure. The Mississippi Supreme Court had tendered proposed procedural rules to the Legislature, but with no effect. As the Mississippi Supreme Court later characterized the next step, “[o]n May 26, 1981 we crossed the Rubicon as the Court entered its Order Adopting the Mississippi Rules of Civil Procedure.” Hall v. State, 539 So.2d 1338, 1345 (Miss. 1989). The 1981 Order cited Newell v. State, 308 So.2d 71, 76 (Miss. 1975), in which the Mississippi Supreme Court announced that “[t]he inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.”

But prior to 1981, the supreme court had invoked Newell primarily to restrain the legislature. In Jackson v. State, 337 So.2d 1242, 1253-57 (Miss. 1976), the court applied its “inherent power” to substantially re-write Mississippi‘s capital sentencing statute in light of concerns that the statute would be invalidated in the wake of the United States Supreme Court’s rulings in the 1976 capital punishment cases. The Legislature promptly passed a new statute that adopted Jackson’s re-interpretation.

The 1981 Order was far different. It promulgated “Rules of Practice and Procedure in all Chancery, Circuit, and County Courts of this State” and specifically provided that “in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control.”

In 1983, the court asserted its authority again. A series of statutes had created multiple “commissions” which exercised executive power.1 These commissions were largely independent of the executive department, however; their members were appointed equally by the Governor, the Lieutenant Governor, and the Speaker of the House of Representatives. It was common for the latter two appointing authorities to name sitting legislators to these executive commissions.

The Mississippi Supreme Court struck down the practice of dual service in Alexander v. State ex rel. Allain, 441 So.2d 1329 (Miss. 1983). The court had previously held that the State Attorney General had “the inherent right to intervene in all suits affecting the public interest when he has no personal interest therein.” State ex rel. Allain v. Mississippi Public Service Comm’n, 418 So.2d 779 783 (Miss. 1982). Attorney General Allain used this new power to bring suit against legislators who served on executive branch commissions. Invoking the doctrine of separation of powers, the supreme court held that no officer of one branch of government could exercise authority at the core of the power constitutionally assigned to one of the other departments. Alexander, 441 So.2d at 1345-46.

The use of judicial declarations to supplement perceived legislative inadequacies was repeated in 1985, when the court issued its Order promulgating the Mississippi Rules of Evidence. Rule 1103 expressly provided that “[a]ll evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.” See McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103, 67 Miss. L.J. 547 (1997).

Under the “repealer” in the Mississippi Rules of Evidence, the supreme court invalidated the spousal incompetence statute, Fisher v. State, 690 So.2d 268 (Miss. 1986); the statute on nonconsensual blood alcohol tests, Whitehurst v. State, 540 So.2d 1319 (Miss. 1989); and the Evidence of Child Sexual Abuse Act, Hall v. State, supra.2

The assertion of judicial authority was not limited to procedural rules. In Pruett v. City of Rosedale, 421 So. 2d 1026 (Miss. 1982), the supreme court abrogated the doctrine of sovereign immunity, giving the Legislature a one-year reprieve within which to enact a state tort claims statute. The Legislature responded by passing a series of one-year extensions of sovereign immunity. In 1992, the court, frustrated with the decade of delay, invalidated the extensions. Presley v. Miss. State Highway Comm’n, 608 So. 2d 1288 (Miss. 1992). The Legislature obediently – and out of necessity – established a tort claims system to prevent unlimited suits against the public fisc. Miss. Code Ann. §11- 46-1.

In short, perceived legislative inertia led the Mississippi Supreme Court to assert what many criticized as an activist role within the branches of state government. The refrain, that “We can no longer sit idly by,” was used as late as 1999, in Jackson v. State, 732 So.2d 187, 191 (Miss. 1999), to justify a judicially created right to State-compensated counsel in capital post-conviction proceedings. The Jackson court complained that “[t]he Legislature has been aware of this acute problem” but had failed to solve it. Id. Inaction on the part of the legislature was seen as sufficient constitutional grounds for judicial action.

 

The Rules of Standing

As discussed above, several of the cases in which the supreme court intervened in traditionally legislative areas were brought by the Attorney General or other public officials. In State ex. rel Allain v. Mississippi Public Service Comm’n, supra, the court granted broad standing to the Attorney General to bring declaratory judgment and injunction actions that were deemed to be in the public interest. That power was promptly used to evict legislators from executive commissions in Alexander, supra. In Dye v. State ex rel. Hale, the court ruled that this standing was not exclusively held by the Attorney General, but could be exercised by any public officials who alleged that the challenged public action (there the Senate Rules) had an “adverse impact” on them. 507 So.2d at 338. In Fordice v. Bryan, 651 So.2d 998 (Miss. 1995), three legislators and the Attorney General secured a declaratory judgment that the Governor’s partial vetoes of certain bills were unconstitutional. The court held that the legislators had standing because “[t]heir votes on these bills were adversely affected by the Governor’s vetoes.” Id. at 1003.

Those broad standing provisions were extended to private citizens in Van Slyke v. Board of Trustees of State Institutions of Higher Learning, 613 So.2d 872 (Miss. 1993). The Van Slyke court observed that the Mississippi Constitution, unlike the Federal, does not limit judicial review to actual cases and controversies. Adopting an earlier dissent, the court posed this rhetorical question: “citizens should have the authority to challenge the constitutionality and/or review of governmental action, and if individuals do not have such authority, how else may constitutional conflicts be raised.” Id. at 875.

 

The Quest for “Legislative Intent’

The Mississippi Supreme Court of the 1980s and 1990s seemed to many to hold the view that statutes were malleable. The court’s lodestar of statutory construction in Mississippi was “legislative intent.” “Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent.” City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992). But because Mississippi does not have recorded “legislative history,” see L. Southwick, Statutes, Statutory Interpretation, and other Legislative Action, 8 Encyclopedia of Mississippi Law § 68:53 at page 103 (West 2001 and Supp. 2003) (“Mississippi legislative debates are not preserved, nor are committee reports and other documents that are often used to explain the intent of Congress to those advocates and judges who believe in that exercise”), the search for “legislative intent” did not always mean the court was able to discover what the actual legislators who voted on the statutes meant to say.

Instead, some justices declared that “we seek meaning in the principles and policies embedded in the legislative expression. Given the text, we ask what purpose could best justify the promulgation of this act? We seek that statement of purpose which may best justify the statute today, given the world we live in. . . . Our task in the end requires that we give to the work of the legislature the most coherent and principled reading available.” Stuart’s, Inc. v. Brown, 543 So.2d 649, 651 (Miss. 1989) (emphasis in original). 

“Statutes should be read sensibly, and this is so even if it means correcting the statute’s literal language.” Ryals v. Pigott, 580 So.2d 1140, 1148 n.15 (Miss. 1990). Thus, “the meaning of a statute may be extended beyond the precise words used in the law, and words or phrases may be altered or supplied, where this is necessary to prevent the law from becoming a nullity.” City of Houston v. Tri-Lakes Ltd., 681 So.2d 104, 105 (Miss. 1996).3 Judge Southwick summarized this jurisprudential theory: “A search in Mississippi for ‘legislative intent’ is in reality an effort objectively to evaluate the reasons for a statute’s passage. The examination is eclectic.” L. Southwick, supra, at § 68:54, page 106.

 

Stare Decisis

Even during the period in which the Mississippi Supreme Court was criticized for judicial activism, the court articulated a commitment to stare decisis. “[S]tare decisis proceeds from that first principle of justice, that, absent powerful countervailing considerations, like cases ought to be decided alike.” State ex rel. Moore v. Molpus, 578 So.2d 624, 634 (Miss. 1991). But the court in Moore recognized exceptions. First, the court noted that the imperatives of stare decisis controlled more strongly in public matters and constitutional interpretation, and less so in private litigation. Id. Also, where a precedent “produced great and sustained harm,” it can be overruled. Id. at 635. That was certainly the attitude in cases like Pruett and Presley, where precedent was deemed to be inapplicable to changing conditions.

 

The Future

Some judicial observers have discerned that in the last four to six years, the Mississippi Supreme Court has shown an increased level of judicial restraint and a limited view of its role in the system of government.

On the question of rulemaking authority; the court deferred to the Legislature in Claypool v. Mladineo, 724 So.2d 373 (Miss. 1998).4 Claypool reviewed confidentiality statutes enacted by the Legislature to protect the deliberations of medical peer-review committees. There can be little doubt that in the era of Hall v. State, the statute would have been considered “repealed” by the Rules of the Evidence. Instead, the plurality opinion in Claypool read the statutes to be “part of the substantive law of the state for the ‘express legislative purpose of promoting quality patient care.’” Claypool, 724 So.2d at 377 (emphasis added), quoting Miss. Code Ann. § 41-63-29 (Supp. 1997). The statute was held to be “an exercise of the legislature’s constitutional authority to enact laws to preserve public health and safety” and upheld. Id. “We find that the Legislature created a permissible substantive statutory exception to discovery and evidence . . . .” Id. at 382.

The court has also reversed on the issue of standing. In Board of Trustees of State Institutions of Higher Learning v. Ray, 809 So.2d 627 (Miss. 2002), the State Board of Community and Junior Colleges, and a group of individual citizens, sued the State College Board. The Junior College Board argued that it had public official standing as in Dye, and the individual plaintiffs asserted taxpayer standing under Van Slyke.

The supreme court disagreed. Miss. Code Ann. §7-5-1 requires one state agency to secure the approval of the Attorney General before filing suit against another agency. Citing Frazier v. State ex rel. Pittman, 504 So.2d 675 (Miss. 1987), a case from the era of judicial supremacy where the State Ethics Commission was granted standing to bring suits without the consent of the Attorney General, the Junior College Board argued that §7-5-1 could simply be dispensed with. The court distinguished Fraizer, saying that “it was not necessary for the SBCJC to file suit in order to fulfill the duties imposed on it by statute” – a signal declaration of judicial humility. 809 So.2d at 633. Rather, the court held that the Attorney General approval mechanism in the statute promoted resolution of conflicts and would be enforced literally.

The court then rejected the private plaintiffs’ claim to standing: “The SBCJC has organized a large group of citizens to file suit in what amounts to a blatant attempt at subterfuge to get around the dictates of § 7-5-1. To allow this case to proceed would be to allow the SBCJC to make an end run around the law, and this we will not allow.” Id. at 635.

Standing was also denied in City of Jackson v. Greene, 869 So.2d 1020 (Miss. 2004). In that case a group of parents contended that two city council members should have recused themselves from voting to confirm the mayor’s appointment of two members to the school board. The Mississippi Supreme Court held that in order to assert standing to appeal a municipality’s decision, the aggrieved party “has the burden of ‘demonstrat[ing] a specific impact or harm felt by him that was not suffered by the general public.’” Id. at 1024.5

The Greene principle, if applied to constitutional standing cases in general, would be a significant limitation on Van Slyke. As noted above, standing limitations are valued because they discourage “test cases” that become abstract judicial pronouncements and intrusions into the business of the other branches of government. Requiring a showing of more concrete, individualized harm draws a more concrete line between the business of legislating and the business of adjudicating disputes. While some may criticize this development as an abuse of stare decisis, others have argued that in fact it shows a renewed respect for long-instilled principles which preceded Van Slyke.

Two recent decisions on political questions demonstrate a change in the relationship of the Mississippi Supreme Court with coordinate branches of government. In Tuck v. Blackmon, 798 So.2d 402 (Miss. 2001), a state senator sued the Lieutenant Governor for an injunction that bills from conference committees be read in toto on the Senate Floor before a vote – the only “filibuster” available under state legislative rules. Senator Blackmon relied on Dye. The court held that the holding in Dye was limited to “fundamental” issues that were “basic to the separation of powers” and “manifestly beyond the Senate’s constitutional authority.” Id. at 405- 06. Citing pre-Dye case law, the Tuck court held that “procedural provisions for the operation of the Legislature – whether created by constitution, statute, or rule adopted by the houses – should be left for the Legislature to apply and interpret, without judicial review.” Id. at 407.

In Mauldin v. Branch, 866 So.2d 429 (Miss. 2003), the court held that the state courts have no power to impose Congressional redistricting. The Legislature had not drawn congressional districts after the 2000 census. Plaintiffs filed suit in Hinds County Chancery Court, which issued an order adopting a redistricting plan. The Mississippi Supreme Court held squarely that “no state court has jurisdiction to draw plans for congressional redistricting.” Id. at 434 (emphasis in original).

Instead, the court pointed out that a “default” statute provided for at-large congressional elections if the Legislature failed to act. Acknowledging that even though “an at-large election is an unpopular option, it is the law of this State.” Id.

Of particular interest was the Mauldin court’s decision of statutory interpretation: “The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit.” Id. at 435.6

The court in Mauldin made two significant statements about its role vis-a-vis the coordinate branches of government. In refusing to take on the legislative duty of redistricting, the court said: “The Court cannot ignore the will of the people of this State as written in [the statute for at-large elections, rather than judicial interaction]. To do so would undermine all enforcement of State law.” Id.

Second, the court made clear that it did not approve of the Legislature’s inaction. But it assumed that judicial restraint would force the Legislature to do its duty: “The slate is clean now, and the way is clear for our Legislature to reassert its authority to represent the people of this State in the adoption of the congressional districts to be used in the next election . . . .” Id. at 436.

This attitude towards the Legislature is also manifested in the court’s more recent opinions where the constitutionality of statutes is questioned. In City of Belmont v. Mississippi State Tax Commission, 860 So.2d 289 (Miss. 2003), the court held that the Legislature could pass a statute approving of the method the Tax Commission used to calculate sales tax repayments to municipalities. The court declared that “it is not for the courts to decide whether a law is needed and advisable in the general government of the people. That is solely a matter for the wisdom of the legislature. But, it is our duty to construe the law and apply it to the case presented, and determine whether the Constitution of this State authorizes the legislation.” Id. at 307.7

In particular, the court pointed out that “the control of the purse strings of government is a legislative function. Indeed, it is the supreme legislative prerogative, indispensable to the independence and integrity of the Legislature, and not to be surrendered or abridged, save by the Constitution itself, without disturbing the balance of the system and endangering the liberties of the people.” Id. at 306- 07.8

In PHE, Inc. v. State, 877 So.2d 1244 (Miss. 2004), the court upheld the statute prohibiting the sale of sexual devices. Plaintiffs challenged the statute under the free speech and right to privacy provisions of the State Constitution. While expressly respecting stare decisis by acknowledging that the court had previously recognized a right to privacy, the PHE court declined to extend that precedent so as to invalidate the antisexual devices law. This result indicated the court’s deference to the Legislature, and required that “‘[a]ll doubts must be resolved in favor of the validity of a statute,’ and any challenge will fail if the statute ‘does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.’” Id. at 1247.9

This perceived shift away from its alleged past judicial activism does not mean that the Mississippi Supreme Court refuses ever to declare statutes unconstitutional. In Public Employees’ Retirement System v. Porter, 763 So.2d 845 (Miss. 2000), the court struck down a statute as applied to the election of pre-retirement death benefits. The statute, according to the court, impaired the rights of the employees to name their own beneficiaries. And in IHL v Ray, supra, the court struck down a statute which limited the College Board’s control over degree and curriculum programs. In each case, however, the court acted to protect the decision-making authority of other participants in the system, and its ruling was not interpreted as an expansion of its own authority.

 

Endnotes

1 These included the Commission of Budget and Accounting, the Capitol Commission, the Board of Corrections, the Central Data Processing Authority, the Board of Economic Development, the Medicaid Commission, the Personnel Board, the Board of Trustees of the Public Employment Retirement System, and the Wildlife Heritage Committee. Alexander v. State ex rel. Allain, 441 So.2d at 1329, 1332-33 nn. 1-2 (Miss. 1983). 

2 The court has also implied that the Dead Man’s Statute was invalidated by Miss.R.Evid. 601. In re Last Will and Testament of Dickey, 542 So. 2d 903, 905 n.1 (Miss. 1989). 

3 Quoting 50 Am. Jur. Statutes §357 (1944). 

4 By the time of Claypool the Legislature had extended the olive branch to the supreme court by amending Miss. Code Ann. §9-3-61 in 1996 to expressly give rulemaking authority to the court.

5 Quoting Burgess v. City of Gulfport, 814 So.2d 149, 153 (Miss. 2002). 

6 Quoting Stockstill, supra, 854 So.2d at 1022-23 (Carlson, J.). 

7 Quoting Moore, supra, 39 So.2d at 509. 

8 Quoting Culbert v. State, 86 Miss. 769, 39 So. 65, 66 (1905).

9 Quoting Cities of Oxford, Carthage, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass’n, 704 So.2d 59, 65 (Miss. 1997).

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