Thursday, January 12, 2012

When is a publication a publication - and whom does one ask?

The trusties' pardons we noted the other day were followed by a slew of pardons and commutations just before Barbour left office. Many of these new mercies were issued to persons who had *not* killed their wives!

NMC has been all over this, and reports that Jim Hood has obtained a TRO on the basis that some of the pardons may not've complied with Section 124 of the state constitution, which requires 30 days' notice via newspaper publication prior to a pardon's issuing.

Not at all my area of the law, but Justice Ethridge's dissent in State ex rel. Boone v. Metts, 125 Miss. 819 (1921), bears quotation:
For instance, he is limited in granting a pardon to such cases as where publications have been made for thirty days in a newspaper of the county, but his decision as to whether the publication was made is not open to judicial review.
Ethridge - one of the more respected justices of his day - makes this statement without citation, as if it were too obvious to need support. I don't see where the majority disagrees.

What kind of limit Section 124 sets, if the governor is himself the judge of whether the limit doesn't apply, is a question I wish I could ask Justice Ethridge; but given the paucity of law on the subject, it seems worth mentioning.


  1. There are functions by independent branches that aren't reviewable. It wouldn't shock me to learn this is one of them.

    I'm encountering a lot of reports of cases that were advertised, others that were not, and some that were advertised but no pardon was issued. A pretty chaotic picture.

    If we had reporters out there, an obvious place to start would be the parole board, to see which ones didn't originate there, and see who all was on which applications (e.g. that one I just noted that had former Republican congressman Webb Franklin on it...).

  2. There are functions by independent branches that aren't reviewable. It wouldn't shock me to learn this is one of them.

    That would certainly be the most attractive resolution to me, if I were on the MSSC. (Which, Gentle Reader, I am not.)

    I just hope we don't get some wacky initiative that wrecks the pardon power. If Barbour were playing 11th-dimensional chess, that might be his *goal* in all this. Just a thought.

  3. I think this is a very appropriate end to the turbulent relationship between Hood and Haley. I think one could write a damn good book on the legal struggles between those two, from the fight over the Partnership, candidate ballot placement, to when to hold an election, etc... One could understand all he needs to know about Mississippi constitutional law from reading such a book. Personally, I think that this is--and Haley will hang his hat on--a separation of powers issue. Mississippi has always had a much stronger separation of its functions of government than the feds. While the U.S. Constitution does not ever specifically mention separation of powers, Mississippi's states it in Article 1, sections 1 and 2. And there is a great deal of history of each branch keeping out of the others' business. I would agree with Justice Etheridge that no court has any power to review the Guv's decision--much the same as the U.S. Supreme Court does not have the power to review impeachment by the U.S. House, removal by the Senate, i.e. it's a political question or some other non-justiciable controversy. Of course, I have no idea how the eight men and one woman of the MSSC will choose to decide. I don't think Haley cares all that much, personally.

  4. Does one have to go through the court to have a public notice published or not?

  5. 9:52 - not that I'm aware of.

    9:25 - agreed that Barbour is unlikely to lose any sleep if one of the convicts *doesn't* get pardoned, etc. after all. Joke's on them, then.

    Re: Barbour vs. Hood, there's an old quip about having a battle of wits with an unarmed opponent. I leave the potential application of that quip as an exercise for the reader.