Friday, February 10, 2012

The argument for the Barbour pardons

Yesterday's oral arguments at the MSSC left a good many lawyers expecting that the pardonees will prevail in the AG's suit to revoke the last-minute pardons issued by Haley Barbour. Some non-lawyers however are puzzled. Isn't Section 124 clear?
... 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.
Well, kind of. It's not very clear about instances where no one is applying for a pardon (Mansion trusties, dead people). And, as came out yesterday, even the AG hasn't required publication of the full petition (which an attorney for one pardonee told me would cost $4,000 to run in the relevant paper). And while no one raised it yesterday, it says "the applicant" himself must publish - so is a pardon invalid if the Governor or MDOC ran the notice instead?

But those issues aside, let's look squarely at the main issue: an applicant who's published no notice at all, but who is pardoned anyway. At least some of Barbour's pardons fall into this category, right? So what about those?

The answer urged by the pro-pardon attorneys yesterday, which it certainly seemed was attracting favorable attention from a majority of the Court, is that the publication is absolutely required, but that the courts cannot decide whether it's been done. That is a strange answer to most non-lawyers and to some lawyers, so let's take a look at how that might be the right answer.

First, let's look at the beginning of the 1890 constitution (which I'll call "1890"):
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.

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.
Unlike the federal Constitution, which implicitly separates the powers, 1890 does so expressly and up-front, which tells you something about the importance of this provision.

Just two years after 1890 was enacted, the MSSC decided a case called Hunt v. Wright, which arose out of section 68 of 1890:
Appropriation and revenue bills shall, at regular sessions of the legislature, have precedence in both houses over all other business, and no such bills shall be passed during the last five days of the session.
See that "no such bills shall be passed" language? It's very similar to the "no pardon shall be granted" language in Section 124. Both sections seem quite clear.

But in Hunt, the MSSC refused to overturn a liquor tax that was enacted in the last 5 days of the session.
the legislature, as a co-ordinate department of the state government, invested by the constitution with legislative power, is not subject to supervision and revision by the courts as to those rules of procedure prescribed by the constitution for its observance, because, while those rules are all authoritative and mandatory to legislators, who are sworn to note and observe them, they exhaust themselves upon legislators, and are not for the consideration of courts, which cannot explore legislative journals to see if all the directions of the constitution were observed, but must accept as legislative enactments, duly passed as prescribed by the constitution, all such acts as are duly authenticated as such in the mode prescribed by it. * * *

The declaration of section 68 that no appropriation or revenue bill shall be passed during the last five days of the session, has reference to being passed by the legislature, and does not refer to approval by the governor. The two houses pass bills. The governor approves, and he may approve at any time when the legislature is in session. While the provision of section 68 is obligatory on the legislature, its disregard of it is beyond the reach of courts, which are not keepers of the consciences of legislators, and deal only with what they do, and not what they should have done or omitted.
(Boldface added, here & throughout.) So the separation of powers is sufficiently strong that, even where Section 68 expressly says the Legislature shall not do such-and-such, the courts will not redress an alleged violation. This was a unanimous decision by justices who presumably were a lot more familiar with the making of 1890 than we are today (as Justice Dickinson noted in his questioning yesterday). Hunt was reaffirmed as recently as 2001 in Tuck v. Blackmon, so it's not just some quaint fossil on the jurisprudential shelf.

Okay, now, what about pardons? We turn to the decision of Montgomery v. Cleveland, 1923, written for the Court by Justice George Ethridge, the dean of Mississippi constitutional scholars. It doesn't address the publication requirement directly - no decision of the Court does - but Justice Dickinson and Chief Justice Waller yesterday appeared to suggest that this case might well be controlling. What does it say?
While a pardon is a matter of grace, it is nevertheless the grace of the state, and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him. Of course, he is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters.
The question for the AG yesterday was, isn't the matter of compliance with the publication requirement a question of the "sufficiency of the facts" that is left to the Governor as "sole judge" in which "no other department of the government has any control"?

Tom Fortner, arguing for the pardonees, said that under Hunt, the Court would be showing less respect to the Executive than to the Legislature if it reversed the pardons on a procedural issue. Hood's response was that Hunt was wrongly decided, and that today's Court can read 1890 a lot better than the justices could back in 1892. He also didn't seem to have much of an answer on Montgomery except to say that it too must be overruled in part; he wanted to say that only the "wisdom" of the pardons escaped judicial review, but as Justice Dickinson pointed out, it says "facts."

In 1890 the people added to their constitution a new factual requirement, that the applicant make publication; but nothing in 1890 specified that this new factual issue was any less for the Governor's sole determination. If they wanted Section 124 to make that factual determination uniquely one reviewable by the courts, contrary to the long history of unilateral executive discretion, then they probably should have said that in the text. But they didn't.

As Hood correctly noted, the publication requirement was new in 1890. But compare this from Hunt:
while the new constitution contains new provisions restrictive of legislative power, and designed to guard against evils in legislative proceedings, there is nothing to suggest that the courts are to pry into the record of the proceedings of the legislature to ascertain if it regarded rules prescribed for its observance while about its business.
Like I said: 1890 includes the requirement, but doesn't suggest any extraordinary means of enforcing it. (Note especially the contrast with pardons for treason, which must be approved by the senate.)

I'm not saying the above arguments are indefeasible; I could try to distinguish Hunt and Montgomery. But the AG, who evidently came in woefully underprepared for his argument, didn't seriously try to distinguish them.

At bottom, the perplexity felt by many about this case may have its roots in the notion that constitutional violations are always remediable by the courts. This is largely true in the sphere of civil rights, which is why Hood (with some help from an increasingly irked Justice Randolph) was trying to cast Section 124 as protecting some "right" of the public's.

But in separation of powers, where the whole point is to limit the judiciary's power, there may be some constitutional wrongs that the courts cannot redress -- which goes against our modern way of looking at things. People in 1890, I daresay, were much less attuned to the idea of everything's being something for the courts to fix. When the people elected Haley Barbour (twice), they implied they trusted him to carry out his constitutional duties. It seems that trust was misplaced. But having trusted him to obey Section 124, they may need to look not to the courts, but to the old maxim of caveat emptor.


  1. I'm still somewhat nonplussed that no one on the Court asked Hood from whence originated this heretofor-unheard-of due process right in the citizenry to notice of pardon applications.


  2. Thought it was very well written and presented the individual issues concisely. I really appreciate you taking the time to do this.

    I'm most interested of the impact if the court does go down the path of redressing the constitutional issues. Will it impact previous pardons? What can of worms are then opened up?

  3. Thanks, Kap! And yes, Jane, that is a good question -- possibly they felt like they already knew the answer, which would refer to a zone in the vicinity of Hood's back pockets. And who really wants to think about that zone?

    As for redress, I'll just quote myself from the NMC thread linked in the post:

    They could split the baby: trusties and other non-applicants needn’t publish, 4 weeks is fine in a weekly paper, but other than that, 30 days is required.

    I’m just not clear how they get there, unless they’re going to police the executive branch in a way they won’t police the Legislature. But of course, they’re the court of last appeal: they can do what they want. Kind of like Barbour is accused of doing.

  4. There must be a statute or case law establishing publishing as an act "on a daily basis" for 30 days, yes? Otherwise, what is the difference of publishing once and waiting 30 days.

  5. Well, there's this:

    With reference to the publication of the notice: It was published in a newspaper weekly for four consecutive weeks. Judge Kimbrough, the owner of the property at that time, neither made claim to damages for its taking within thirty days after the time fixed in the notice, or within thirty days after the last publication of the notice. The requirement of a given number of days' publication of a notice has been quite uniformly held not to contemplate a daily printing of the notice. It is stated in the notes to Southworth v. Glasgow, 232 Mo. 108, 132 S.W. 1168, Ann. Cas. 1912B, 1267, that it had been so held by the courts of Georgia, Idaho, Illinois, Indiana, Iowa, and Maryland.

    Henritzy v. Harrison County, 180 Miss. 675, 696-697 (Miss. 1938)

  6. That case involved a statute requiring a governmental entity seeking to condemn property for a right of way to publish its intent in a newspaper for 30 days.


  7. Hood argued that that case was somehow different because it involved a 30 day provision in a statute not the constitution (and statutes, he said, can be easily changed by the legislature unlike the constitution). He really said that.

    Randolph's right of the people was pretty strange, I thought.

  8. I just looked at his brief and Hood did do that. He argued 1) that Henritzy was incorrectly decided and 2) that it involved a statute not the Constitution.


  9. I just looked at Hood's brief and that's what he did. He argued 1) that the case was incorrectly decided and 2) that it was inapplicable because it was construing a statute not the Constitution.


  10. The requirement of a given number of days' publication of a notice has been quite uniformly held not to contemplate a daily printing of the notice. So, 30 days is not really 30 days, it is 4x7=28=30?

  11. Hood argued that that case was somehow different because it involved a 30 day provision in a statute not the constitution

    That is where I would have liked some citation for the holding that one construes materially identical language differently (and more strictly) in a constitution than in a statute.

    I really have no idea what Hood did to prepare for that argument. If he wasn't ready to get into the fine points of Hunt and Montgomery, what was he doing there?

  12. Kap, it's that damned Sumerian calendar, is the problem.

    "30 days" can mean "30 days," or it can mean "about a month," and a month is "four weeks," kind of.

  13. Hood was preparing a history lesson which Justice King had the temerity to interrupt.


  14. What is the over/under on the number of cases Hood needs 'incorrectly decided' to pull off this 4-card draw into a straight flush?

  15. Anderson, would like to affirm KK's early comment. A very well written piece that addresses and spells out the various issues. Thanks for the effort. You - and NMC - have done a terrific job of exploring and reporting this matter - and the comments from all the lawyers, non-lawyers, and wanna-be lawyers have been insightful.

    I too have been amazed at Hood's ineptness at MSSC yesterday, but not surprised. He survived well in Tommie Green's courtroom because he was not held to any judicial standard of intelligence or fact. Can't imagine, though, that he thought he could win there and it all stop!

  16. Thanks, J. Not much in the post that couldn't be gleaned from NMC's blog, but it seemed like it might be helpful to put it in one spot, so that anyone who's sincerely puzzled how Hood could be wrong can see it.

    Who knows what the Court will actually do, but at least the issue *is* a little more complicated than "but it says 'shall'...!"

  17. Isn't the publication requirement only applicable to an 'applicant' --and a limitation not on the pardon power, but only on whether an 'applicant' is constitutionally eligible for a pardon ?

    The first sentence of 124 plainly gives the Governor broad pardon powers for all crimes. The remainder of the section only describes those people not constitutionlly eligible for a pardon.

    Accordingly, the applicant/publication clause is not a limitation on the pardon power, only on whether an applicant is eligible for a pardon. The governor can still pardon a person under the first sentence, application or not.

    The clause could be read---"For an applicant convicted of a felony, no pardon shall be granted until the applicant has published...."

  18. Can grace ever be wrong? Rules, restrictions and hurdles to grace seem wrong.

  19. Remember folks, The Gov. always said with Haley what you see is what you get. Well do you see what you had now? A little late for voters remorse I think.JL

  20. Glad you're back at the keyboard, JL!

  21. Thanks for taking the time to explain this so well and simply. I'd also offer that it appears to me that people in the 1890s were much more acceptable of the concept of "wisdom" from respectable sources. Additionally, during that time of history, treason and accusations of treason were taken much more seriously in light of the 'recent unpleasantries' of the post-Civl War era.

    One more thought: Jefferson Davis's final "Lost Cause" tours shortly before his death in December 1889 were highly attended affairs. And he was accused of treason, something people in Mississippi would have perhaps had on their collective minds while writing the constitution.


  22. Although Davis was charged with treason he was never tried (or pardoned). This was because what he did was not considered to be treason. The only way he could even be held was by military authority. Many people who were not fans of Davis, including the Pope, wrote to President Johnson asking for his release. The terrible way he was treated by the US Army made him a much more popular man than he would have been in the South.JL

  23. Anxiously awaiting gods blessing, the answer to so many prayers. Our forgiving father has shown us his merciful will. We know his love and grace would not bring so many prayers this far to let us down. We have waited nearly 9 long years for this travisty of justice to be corrected. I cannot tell you why his delieverance has been so loud. I cannot see Gods plan, but I know just as Daniel was cast into the lions den so was my brother, and delivered by the grace of god so has "he" been. For if god be with us who, can stand against us? Satan has fought us so hard his corruption all over every transcript of every hearing but our faith in Christ our savior has delivered his pardon.
    For we pray...Our father who art in heaven...
    I command you Satan, Lord of darkness, maker of all lies and deciet get behind us all, faithful believers in Jesus Christ, who gave his very life so we would recieve a pardoned,in the name Jesus Christ, Amen

    I just wanted to thank you all for your valued opinons. JIm Hood lied to us, just as he has lied to the vast public in this presentation, of who he really is. Just think one day he wants to be ,UM...

  24. I enjoyed the discussion on how the petitions were not printed precisely but Hood said that was "OK" because that is how newspapers decided to do it. A justice asked him if the newspapers are now telling us what the Constitution means.

    I wish there had been follow up. If a newspaper refused to publish the petition, would it thwart a pardon? Could the state compel a newspaper to publish the pardon against its will? If so, would there be U.S. First Amendment issues to deal with?

  25. my brother applied thru the parole board, was instructed by the board where and what language to publish. The agent at the news paper agreed the requested notice was what is custom as per her 31 years there. Ordered and paid on the 8th susposed to run on 12th came out on 14th ran once per week for four weeks recieved proof of publication attached to parole boards file. He is a non-violent offender with a non-violent prison record for 9 years confinement. Why is he still locked up?

  26. 5:42, those are the kinds of factual quibbles that suggest discretion should rest with the Gov.

  27. I think the biggest mistake we can make, when diving legislative intent, is to give the drafters too much credit. I'll concede that the 1890 guys were probably Constitutional scholars of some sort. After all, what else was there to do all day? There was no Playstation, internet, cable TV, etc. People just sat around the fire all day, reading and trying not to die from consumption. If that's all you had to do all day, you'd get pretty good at it, too. But have you seen some of the bills that our legislators have submitted recently? Swear to God I saw one that was written in crayon. And when you point out that the bill is completely unworkable, ambiguous, contradicts itself and needs to be re-written? "Um, yeah, that's really hard. If you'll excuse me, the Redlick VFW Patriotic Birdhouse Brigade is hosting a reception with an open bar for me. They want us to put patriotic birdhouses in front of every government building in the State, to send a message to Washington, illegal immigrants, Obama, people on welfare [who are not white], the Muslims, Wallstreet, people that drink microbrews, people that teach fundamental, scientific principles, Obama and trial lawyers. It will only cost $34 million. I think we'll do it."