MSSC to Legislature: Not so fast, my friends ....

After two hours of technical difficulties, the MSSC's website finally resumed operation, including this in the hand-downs list:

Dialysis Solutions, LLC v. Mississippi State Department of Health; Mary Currier, in Her Official Capacity as the Executive Director of the Department and State Health Officer; Hinds Department of Health Certificate of Need 1st District; Ruling Judge: Mary Currier; Disposition: On the Court's own motion, within thirty days of the entry of this order, the parties shall file the original and nine copies of simultaneous briefs, each not to exceed twenty-five pages, which address whether Section 1 of 2011 Mississippi Laws chapter 540 is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the Department of Health. Pursuant to Mississippi Rule of Appellate Procedure 44, the Attorney General of Mississippi is hereby notified that before the Court in this appeal are the questions of whether Section 1 of 2011 Mississippi Laws chapter 540 is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the Department of Health. The Attorney General may file a brief addressing these questions in the manner and within the time stated above for the parties' briefs. The Clerk of this Court shall provide copies of this order to the parties and the Attorney General of Mississippi. Order entered.

(That "Ruling Judge" part is rather pointed.)

The Legislature had amended MCA 41-7-201 to allow for direct appeal of a Certificate of Need decision by the MSDH to the MSSC, without any trifling in chancery court. (Hence the naming of the state health officer as "ruling judge.")

Now that we have an intermediate appellate court, I've long thought that *all* intermediate appeals in circuit/chancery courts should be abolished. They merely provide an additional level of delay and expense. The MSSC doesn't defer to the intermediate decision, and thus the appeal to it becomes a direct review of the administrative decision. The circuit/chancery decision thus becomes nugatory.

(Of course, one could argue that there are policy reasons for making it difficult to challenge administrative decisions ....)

But the MSSC is obviously not amused by the Legislature's tinkering. Here's Section 146:

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The Legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. The Supreme Court shall consider cases and proceedings for modification of public utility rates in an expeditious manner regardless of their position on the court docket.

The "as properly belongs to a court of appeals" language would seem to restrict jurisdiction to cases appealed from a lower court. And that has been the Court's view, as suggested by these holdings I've pulled from the annotations to Section 146:

Under Const. 1890, § 146, providing that the jurisdiction of the Supreme Court shall be such as properly belongs to a court of appeals, the only jurisdiction which the Legislature can confer upon the Supreme Court is to review and revise the judicial action of an inferior tribunal, and such incidental jurisdiction of a quasi original character as is necessary to preserve its dignity and decorum, and to give full and complete operation to its appellate powers. Robertson v. Southern Bitulithic Co., 92 So. 580 (Miss. 1922).

Under Const. 1890, § 146, declaring that the Supreme Court shall have such jurisdiction as properly belongs to a court of appeals, its revisory jurisdiction includes only judicial decisions rendered by a tribunal clothed with judicial power. Illinois Cent. R. Co. v. Dodd, 61 So. 743 (Miss. 1913).

But has the Court read Section 146 correctly? What does the language after "and" add? The "court of appeals" clause states a category of jurisdiction; the "shall exercise no jurisdiction" clause limits its jurisdiction, but expressly allows for "general law" (statutes) to create jurisdiction. Or so one would think.

On that reading, the following sentence allowing the Legislature to provide "by general law" for direct jurisdiction over utility-rate appeals would be superfluous, and that's a no-no when interpreting statutes or constitutions. But it seems obvious that a constitutional amendment was deemed necessary because of the Court's own rulings. If those rulings were mistaken, then an amendment necessitated by those rulings shouldn't be taken to support said mistake.

TBA's take is that, if we attend simply to what Section 146 says, the Legislature cannot take away from the Court's jurisdiction, but it can add to it. That's not what the Court has held, and maybe if I had time to review the case law my view would change; but in the absence of a clause delimiting the Court's original jurisdiction, I'm not convinced that this is Marbury v. Madison all over again.