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"):

SECTION 1.
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.

SECTION 2.
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.