I particularly dislike the majority's heavy reliance on an 1886 Mississippi Supreme Court decision(Ex Parte Wren). Wren was a traveling salesman from Louisiana who was arrested in Jackson for showing goods and taking orders on behalf of a New Orleans company (Philip Laal) without paying a newly enacted State tax of $25 "on each person traveling and selling goods or merchandise by sample or otherwise in this State". Wren argued that the law was not passed by both houses of the Mississippi Legislature. The Mississippi Supreme Court ruled that it didn't matter. The law was presumptively good.In comments at his post, I've asked Philip to provide the cut-off year after which precedents of the Mississippi Supreme Court may be followed. Other questions may arise. Can the presumption that any Miss. Supreme Court decision was racist be rebutted? Are there other character flaws or historical facts that will also serve to invalidate precedents?
The problem I have with the majority's reliance on Wren is the historical context of Mississippi in 1886. This falls squarely into the period when whites were passing laws to disenfranchise blacks following the end of Reconstruction. In addition to disenfranchisement laws, the whites in power were murdering scores of black citizens in order to restore white supremacy. It was a corrupt and lawless time in the State of Mississippi. The Mississippi Supreme Court did not equally enforce the law. Nobody did until the federal government stepped in in the 1960's. Of course the Mississippi Attorney General argued in favor of the arrest in Wren, he would have been in on what was going on in the State.
With all due respect for the Court, this 1886 opinion by the Mississippi Supreme Court should be given little, if any, precedent authority. The case upheld a bogus-sounding tax (approx. $600 in today's dollars) on an out-of-state salesman. The effect of the tax and the Court's ruling was probably going to be to run the New Orleans grocer out of Mississippi. And the law wasn't even passed by the Legislature? In 1886? The very year that Mississippi disenfranchised blacks? Is that just a big coincidence? How can we trust that Wren was an honest legitimate decision?
In 1886 white power brokers inside Mississippi were consolidating their power and running off (or worse) anyone who got in their way. People like Wren were viewed as carpetbaggers who were taking money out of the pockets of local businessmen. I'm guessing that the Wren tax was not enforced on local Mississippi salesmen. I'm guessing it was a corrupt tax that was selectively enforced.
Bottom line is that Wren sounds real fishy. Given the year that Wren was decided and Mississippi's political climate at the time, it can't be trusted as an honest decision. It has no place in a 2012 opinion. Ironically, the Court uses Wren to support upholding pardons that many people feel were suspect.
Monday, March 12, 2012
Lamest constitutional argument ever?
Like many folks, Philip Thomas did not care for the pardons ruling last week. But he has come up with a creative reason why the Court was mistaken:
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The irony here is that there was either one or two volumes of the Mississippi Reports that, as late as the 1970s, were not supposed to be cited as precedent because they were the product of the Reconstruction era court. Somewhere I've seen this mentioned in a case or some other legal authority, but it's been years.
ReplyDeleteHad not heard of that. Typical.
ReplyDeleteThere is a Mississippi Supreme Court opinion which expressly holds that its decisions for a certain period during Reconstruction hold no precedential value. I can't cite ot it, but I have read it.
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ReplyDeleteHere, is this it?
ReplyDeleteThe decisions contained in the book entitled Mississippi Reports, Vol. 42, being those of a tribunal appointed by a military commander during the reconstruction period, are without binding authority as judicial determinations, save in the cases in which they were rendered.
Lusby v. Kansas C., M. & B. R. Co., 73 Miss. 360 (Miss. 1895). That's the Lexis headnote, actually.
Ah, I'm a poor reader. Here's the actual text from the case.
ReplyDeletePerhaps the case most cited for the false view is that of Railroad Co. v. Devaney, in the book entitled 42 Miss. 555. The case has no binding authority upon us, nor does the doctrine of stare decisis have any application in the case referred to, nor in any other case found in the so-called 42 Miss. The opinions found in that volume are the utterances of a tribunal appointed by the military satrap who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata.
Well all right then! Michael Hoffheimer, 73 Miss. L.J. 195, 261, notes that this holding was cited as recently as 1991, and that in fact cases from 42 Miss. have often been cited as valid law.
Yep, that's it. Here's the text:
ReplyDelete"Perhaps the case most cited for the false view is that of Railroad Co. v. Devaney, in the book entitled 42 Miss. Rep. The case has no binding authority upon us, nor does the doctrine of stare decisis have any application in the case referred to, nor in any other case found in the so-called 42 Miss. The opinions found in that volume are the utterances of a tribunal appointed by the military satrap who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata."
And that wasn't enough to declare the opinion in Devaney dead, the court later states: "The opinion is unsound, mischievous and at war with reason and authority."
Bizarrely, Lusby was cited for all this--including the use of the word satrap-- as recently as 1991 in a Dan Lee opinion, and noted in passing in 1982 in an opinion by Justice Sugg. Better be careful about citing cases in 42 Miss!
Oh, and Phil Stone and his family were apparently old school on this subject-- my set of Mississippi Reports runs from volume 1 through 167 but does not include volume 42.
oops didn't see your reference to Hoffheimer, Anderson...
ReplyDeleteI am sadly disappointed that I went through 3 years of law school, at Ole Miss no less, and never learned of Lusby.
ReplyDeleteMe, too, Anderson. My father, who grduated from the Ole Miss law school in 1937 told me about Lusby several years after I graduated in 1971.
ReplyDeleteActually, Aaron Condon mentioned it to me at some point when I was in law school (I'm a 1981 graduate).
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