Saturday, February 11, 2012

Southwick on Mississippi separation of powers

Trying to google up a biography of George Ethridge (no luck), I stumbled upon Leslie Southwick's 2003 article on separation of powers in Mississippi (72 Miss L.J. 927). He discusses the Hunt case that we noted yesterday:
Obviously, the assumption by one branch of the authority to oversee the internal operations of another branch has separation of power ramifications. Hunt limited its oversight to situations that were not solely internal. The courts would review compliance with constitutional procedural requirements such as the requirement that statutes not be reviewed by reference, or the constitutional time limits placed on appropriation bills, when those requirements affected the operation of the bill, not just its passage.

There is nothing inherently revolutionary to the placement of limits on judicial oversight of other branches. There was no initial concept under separation of powers principles that every act of every government actor had to be subject to judicial review. There are constitutional requirements on the manner in which the legislature operates. There are also requirements for the executive such as to give "from time to time" reports to the legislature on "the state of the government, and recommend for consideration such measures as may be deemed necessary and expedient."

May the judiciary issue a mandamus requiring that the governor give the report if it decides too much time had passed since the last one? * * * Hunt had held that the legislature had an unreviewable area of behavior. The Hunt view was that since the legislature was a coequal branch, correctives other than litigation would be necessary for those errors.


The Hunt opinion is consistent with the original purpose of Mississippi's separation of powers provision, which was to avoid concentrating power in any one branch.
He also gives an example regarding the judiciary:
The constitutional obligations of the judiciary include not reversing a judgment solely because the case was brought in chancery court when it should have been brought in circuit court. If the supreme court nonetheless issued an opinion that reversed solely for that reason, should there be a remedy from some other branch? The remedy would only be through the political process, both by voters and potentially by impeachment.


  1. Southwick - the Court of Appeals' loss, the Fifth Circuit's gain.


  2. AnonymousFeb 11, 2012 12:03 PM
    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...

  3. Lacking the ability to find Ethridge, you did very good for 'second best'. Southwick (IMHO) is one of the best scholars we have on the bench in Mississippi today - Federal or State. Jane's comment above is exactly right, MS "losing" him to the Fifth Circuit was certainly a gain for the Feds.