E-Filed Document

Jun 14 2016 16:25:49

2016-IA-00442-SCT

Pages: 17

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NO. 2016-IA-00442-SCT
PHILIP A. GUNN, SPEAKER OF THE
MISSISSIPPI HOUSE OF REPRESENTATIVES

APPELLANT

v.
REPRESENTATIVE J.P. HUGHES, JR.

APPELLEE

On Interlocutory Appeal
from the Circuit Court of Hinds County, Mississippi,
First Judicial District

AMICUS CURIAE BRIEF OF TATE REEVES, IN HIS CAPACITY AS THE

LIEUTENANT GOVERNOR OF THE STATE OF MISSISSIPPI
IN SUPPORT OF APPELLANT PHILIP GUNN, SPEAKER OF THE
MISSISSIPPI HOUSE OF REPRESENTATIVES

Mark W. Garriga (Miss. Bar No. 4762)

Robert M. Frey (Miss. Bar No. 5531)
P. Ryan Beckett (Miss. Bar No. 99524)
BUTLER SNOW LLP
200 Renaissance at Colony Park, Suite 1400
1020 Highland Colony Parkway (39157)
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
(P) (601) 948-5711
(F) (601) 985-4500
(E) mark.garriga@butlersnow.com
(E) bob.frey@butlersnow.com
(E) ryan.beckett@butlersnow.com
ATTORNEYS FOR AMICUS CURIAE
TATE REEVES, IN HIS CAPACITY AS
THE LIEUTENANT GOVERNOR OF
MISSISSIPPI

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Mississippi Rule of Appellate Procedure 28(a)(1),
undersigned counsel of record certifies that the following listed persons and
entities have an interest in the outcome of this case. These representations are
made in order that the Justices of the Supreme Court may evaluate possible
disqualification or recusal:
1.

Honorable Tate Reeves, Lieutenant Governor, Amicus Curiae;

2.

Honorable Philip Gunn, Speaker of the House of Representatives,

Appellant;

3.

Honorable J. P. Hughes, Jr., Representative, District 12;

4.

Michael B. Wallace
Rebecca Hawkins
Charles E. Cowan
Wise Carter Child & Caraway, P. A., counsel for Appellant;

5.

S. Ray Hill, III

Clayton ODonnell, PLLC, Counsel for Appellee; and

6.

Mark W. Garriga
Robert M. Frey
P. Ryan Beckett
Butler Snow LLP, Counsel for Amicus Curiae.

This the 14th day of June, 2016.

s/Robert M. Frey
ROBERT M. FREY

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .............................................................................. i
TABLE OF CONTENTS................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF ISSUES ............................................................................................................ 2
ARGUMENTS AND AUTHORITIES........................................................................................... 2
I.

Jurisdiction Does Not Exist. ................................................................................... 2

II.

If jurisdiction Exists, This Is Not a Case for the Exercise Thereof. ....................... 3

CONCLUSION............................................................................................................................. 12
CERTIFICATE OF SERVICE ..................................................................................................... 13

ii

TABLE OF AUTHORITIES
Cases
Alexander v. State By & Through Allain, 441 So. 2d 1329
(Miss. 1983)........................................................................................................... 5, 9, 10, 11, 12
Baker v. Carr, 369 U.S. 186 (1962)..................................................................................... 9
Dye v. State, 507 So. 2d 332 (Miss. 1987).................................................................. 8, 10
Everitt v. Lovitt, 192 So. 2d 422 (Miss. 1966) ................................................................ 10
Ex parte Wren, 63 Miss. 512, 533 (1886)...................................................................... 3, 8
Ghane v. Mid-S. Inst. of Self Def. Shooting, Inc., 137 So. 3d 212 (Miss. 2014)...... 9
Hall v. State, 539 So. 2d 1338 (Miss. 1989)................................................................... 10
Hood ex rel. State Tobacco Litigation v. State, 958 So. 2d 790 (Miss. 2007).......... 6
Hunt v. Wright, 11 So. 608 (Miss. 1892).................................................................. 2, 3, 11
In re Hooker, 87 So. 3d 401(Miss. 2012) ..................................................................... 2, 11
Marbury v. Madison, 5 U.S. 137 (1803) ......................................................................... 3, 4
Mauldin v. Branch, 866 So. 2d 429 (Miss. 2003)............................................................ 6
Mississippi State Highway Comm'n v. Spencer, 101 So. 2d 499 (Miss. 1958) .... 11
Moore v. Gen. Motors Acceptance Corp., 125 So. 411 (Miss. 1930)......................... 11
Newell v. State, 308 So. 2d 71 (Miss. 1975)..................................................................... 9
Oktibbeha Cty. Bd. of Educ. v. Town of Sturgis, Miss., 531 So. 2d 585 (Miss.
1988) ............................................................................................................................................. 5
Runnels v. State, 1 Miss. 146 (1823) .............................................................................. 4, 6
State ex rel. Moore v. Molpus, 578 So. 2d 624 (Miss. 1991) ........................................ 4
State v. Cole, 32 So. 314 (Miss. 1902)................................................................................ 5
Tuck v. Blackmon, 798 So. 2d 402 (Miss. 2001) ................................................... 2, 6, 11
Turner v. City of Hattiesburg, 53 So. 681 (Miss. 1910) ............................................. 4, 5
Rules and Statutes
16 Am.Jur.2d, Constitutional Law 140 (1979) ............................................................. 5
Miss. Const. art. 4, 54 ......................................................................................................... 7
Miss. Const. art. 4, 55 ......................................................................................................... 8
Miss. Const. art. 4, 59 ............................................................................................... 3, 9, 10
Miss. Const. art. 4, 72 ......................................................................................................... 5
Miss. Const. art. 4, 80 ......................................................................................................... 4
Miss. Const. art. 6, 146....................................................................................................... 5
iii

Miss. Const. art. 6, 147....................................................................................................... 5

Miss. Const. art. 6, 155....................................................................................................... 5
Miss. Const. art. 6, 157....................................................................................................... 5
Miss. Const. art. 6, 164....................................................................................................... 5
Miss. Const. art. 6, 165....................................................................................................... 5
Miss. Const. art. 8, 212....................................................................................................... 5
Other Authorities
The Federalist, No. 48 (J. Madison) (J. Cooke ed. 1961) ........................................... 12

iv

STATEMENT OF ISSUES
The Supreme Court, by en banc order of May 9, 2016, directed the
parties to address two issues: (1) whether the judiciary has jurisdiction over
this dispute in light of Sections 1 and 2, Article 1 of the Mississippi
Constitutions, and/or (2) whether this Court should refrain from exercising its
jurisdiction over the issues raised in this matter. R. 37, R.E. 29.1 The parties
were also instructed to address the cases of Hunt v. Wright and Tuck v.
Blackmon. Id. This amicus brief addresses these issues, in the order directed.
ARGUMENTS AND AUTHORITIES
I.

Jurisdiction Does Not Exist.

The Courts first question, whether jurisdiction exists, seems plainly to

find its answer in Hunt v. Wright, 11 So. 608, 610 (Miss.1892) (The
constitution, as to mere rules of procedure prescribed for the legislature, is
committed to the members individually and collectively. . . .) (emphasis
supplied). Recent differences within the Court on related, but distinctly
different, issues have cast no doubt on the validity of this aspect of Wright.
They have, rather, re-affirmed it. See In re Hooker, 87 So. 3d 401, 413 54
(Miss. 2012) (majority opinion) (This Court's holding in Hunt concerning the
legislative branch parallels our holding today concerning the executive
branch.); id. at 438 127 (Randolph, J., dissenting) (Furthermore, unlike
R __ refers to the page number of the Clerks papers and R.E.__ is
the designation for the page number of the Record Excerpts submitted by the
Appellant.
1

Hunt and Wren, the present case does not require this Court to engage in the
equivalent of scrutiniz[ing] the daily doings of the legislature. Id.) (quoting
Hunt, 110 So. at 610) (brackets supplied by Justice Randolph; emphasis
supplied).
Article 4, Section 59 of the Mississippi Constitution is among the Rules
of Procedure. As such, it is committed to the legislative branch.
II.

If jurisdiction Exists, This Is Not a Case for the Exercise Thereof.

The answer to the Courts second question seems equally plain.

Representative Hughess Petition asserts, on the supposed authority of Marbury

v. Madison, 5 U.S. 137 (1803), that it is the rights [sic] of the citizens to have
the laws of the land followed; that our government shall cease to be one of
laws, not men if the laws furnish no remedy for the violation of a vested legal
right, and so on. Petition for Temporary Restraining Order p. 2 4 (R. 4; R.E.
4). But even the most cursory review of Marbury will show that this is a
misleading oversimplification: Chief Justice Marshall denied Mr. Marbury all
relief, despite having determined that Mr. Marbury had a vested legal right to
his commission, Marbury, 5 U.S. at 162, and that Mr. Madisons refusal to
deliver same was a plain violation of that right. Id. at 168.

Likewise this Court, although long cognizant of the judiciarys authority

and responsibility to say what the law is,2 has never accepted the facile but
erroneous conclusion that the judiciary may and must be the ultimate enforcer
of every part of the Constitution.3 Id. at 177. It has instead rightly understood
that the people have reserved to themselves the ultimate and exclusive
authority to judge, as to some of the Constitutions commands, both whether
they have been obeyed, and what consequences, if any, should attend their
breach. Section 80, for example, plainly commands (shall) the Legislature to
enact laws to prevent the abuse by cities, towns, and other municipal
corporations of their powers of assessment, taxation, borrowing money, and
contracting debts. Miss. Const. art. 4, 80. Yet, this Court has flatly refused
to enforce this provision. See, e.g., Turner v. City of Hattiesburg, 53 So. 681,
684 (Miss. 1910) (This [the alleged violation of Section 80] may all be true, but
this court is powerless to remedy the matter. . . . It is for the Legislature to say
what constitutes abuse of such powers of a municipality.). Likewise, Section
212 expressly mandates that 6% interest on certain educational trust funds
shall be distributed semi-annually, on the first of May and November of each
The high and important duty of refusing to enforce an
unconstitutional act of the legislature has been recognized by this Court since
at least Runnels v. State, 1 Miss. 146, 147 (1823).
2

This Court does not even correct all of its own errors. See State ex rel.
Moore v. Molpus, 578 So. 2d 624, 635 (Miss. 1991) (Ordinarily, we do not
overrule erroneous precedent unless it is pernicious, impractical, or is
mischievous in its effect, and resulting in detriment to the public.) (internal
quotation marks omitted).
3

year. Miss. Const. art. 8, 212. But when a District Attorney sought a writ of
mandamus to compel the State Auditor to comply with Section 212, this Court
denied relief, on the ground that carrying into effect of the sovereign will as
thus expressed by the Constitution was le[ft] to the legislature. State v. Cole,
32 So. 314, 315 (Miss. 1902). Turner and Cole were cited as authoritative in
Oktibbeha Cty. Bd. of Educ. v. Town of Sturgis, Miss., 531 So. 2d 585, 588
(Miss. 1988), and summarized thusly:
Even if a constitutional provision contains a mandatory requirement that the legislature adopt a
particular provision, there is no remedy if the legislature fails to obey such constitutional
mandate.
Town of Sturgis, 531 So. 2d at 588-89 (quoting 16 Am.Jur.2d, Constitutional
Law 140 (1979)).
Examples could be multiplied.4 At an absolute minimum these decisions
represent prudent judicial restraint, reflecting the truth that the mere existence
of judicial authority hardly mandates its exercise. Alexander v. State By &
Through Allain, 441 So. 2d 1329 (Miss. 1983). And in no scenario is the
Judiciarys prudent restraint more evident than when it is invited to enter into
Section 72 provides that the Governor shall return any bill that he
does not approve, with his objections, to the House in which it originated.
Miss. Const. art. 4, 72. But no one will suppose that either the judicial or the
legislative power could be invoked in the event that the Governor failed or
refused to furnish his objections. As for the judiciary: Section 146 directs
this Court, using the mandatory shall, to consider certain cases in an
expeditious manner regardless of their position on the court docket. Miss.
Const. art. 6, 146. But for faithful compliance with this command (and the
similar commands issued in Sections 147, 155, 157, 164, and 165) this Court
is answerable to the people alone.
4

the lists against the Legislature. For proof of this we need to look no further
than Allain, wherein all nine justices joined to vacate a Circuit Court order that
did no more than enforce the plain mandate of Section 2 (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) (emphasis supplied), substituting for it a mere
declaratory judgment that was to have no force or effect for more than half a
year. Allain, 441 So. 2d at 1347. Why? Because, as the Allain Court rightly
observed,
[t]hese legislators are not ordinary litigants. As duly elected members
of a coordinate department of government, sworn faithfully to uphold
and defend the same constitution as are we, they should be given our
respect commensurate with their standing and responsibilities within our
government.
Allain, 441 So. 2d at 1347.5
This Courts determination to accord to the coordinate department[s] of
government the respect commensurate with their standing and
responsibilities is at maximum strength when the Court is invited to [s]top
the ongoing legislative process while [participants] see[k] court decisions on the
propriety of internal practices. . . . Tuck v. Blackmon, 798 So. 2d 402, 407 8

These are the same considerations that cause this Court to reach
constitutional questions only when absolutely compelled to do so, Hood ex rel.
State Tobacco Litigation v. State, 958 So. 2d 790, 812 76 (Miss. 2007), and
even then to rule against the Legislature only when unconstitutionality . . .
appear[s] beyond reasonable doubt. Mauldin v. Branch, 866 So. 2d 429, 435
21 (Miss. 2003) (internal quotation marks omitted). This wholesome diffidence
and reluctance is coeval with the Court itself. See Runnels, supra, 1 Miss. at
147.
5

(Miss. 2001). The instant case perfectly illustrates the wisdom of this practice.
But for quick action by this Court,6 the Legislatures 2016 regular session
would have come to a screeching halt, and either the vast majority of the
peoples business (including seven appropriations bills on the House calendar)7
would have been left undone, or the session extended indefinitely -- at
considerable public expense. See May 22, 2012 Gadsden Times, Legislators:
Bill reading waste of taxpayers' money (stalling tactic demand for reading of
a single bill added a full day to the session, at a cost of $10,000+).8
Nor is there any reason to believe that the TRO obtained by
Representative Hughes would have been the only TRO. Article 4 of the
Constitution, after all, contains numerous Rules of Procedure for the
Legislature. The very first line, for example, which opens Section 54, provides
that [a] majority of each House shall constitute a quorum. . . . Miss. Const.
art. 4, 54. If Representative Hughess filing states a claim over which the

The temporary restraining order was entered on March 23, 2016. R. 8,

R.E. 7. The deadline for passage of all bills by the House was midnight, March
30, 2016. R. 17, R.E. 16.
6

See Affidavit of Andrew Ketchings (R. 18; R.E. 17).

http://www.gadsdentimes.com/news/20120522/legislators-billreading-waste-of-taxpayers-money?page=2 The bill, over three hundred pages

long, took some twelve hours to read. The photograph that accompanies the
story shows a single Senator -- not the one who demanded the reading -talking on his telephone in an otherwise-empty chamber.
8

judiciary will exercise jurisdiction, it would be difficult to distinguish a filing

challenging the Speakers ruling on whether a majority was in fact present. And
what logic could bar litigation to interpret the House and Senate rules, also
provided for in the provisions governing legislative procedure? See Miss. Const.
art. 4, 55. These, as this Court recognized in Dye v. State, 507 So. 2d 332,
345 (Miss. 1987), go straight to the heart of the legislative process. Is the
judiciary to try, for example, whether a given female Senators dress constitutes
appropriate attire within the meaning of the Senate Rule 35A?9
Well and truly did this Court forecast, more than a century ago, that if
this were the case the circuit and chancery courts will be constantly engaged
in like manner, and this court will, on appeal, have often to try the correctness
of the determination of the court below. . . . Ex parte Wren, 63 Miss. 512, 533
(1886).
And picture, for a moment, such trials. The Circuit Court, under
Representative Hughess view, would receive evidence and make factual
findings on what sort of reading constitutes (as the TRO put it) a normal speed
and audible level comprehensive [sic] lever [sic] so that each member of the
House of Representatives has an opportunity to hear and understand each
word. R. 8, R.E. 7. What, precisely, would be the nature of the evidence
offered? Expert testimony?
House and Senate Rules are available on the official website of the
Mississippi Legislature, www.legislature.ms.gov, under the General Information
tab.
9

This, the briefest contemplation of the practical implications of

Representative Hughess position, has disclosed not one but two characteristics
that unmistakably mark a non-justiciable political question, either of which
would suffice to stay the judicial hand.10 A moments additional reflection
discloses at least two more.11
The bottom line is this: the TRO that Representative Hughes obtained
was without notice, and without even a pretended excuse for lack of notice. It
was issued notwithstanding that a plain, adequate remedy was open to him,12

See Ghane v. Mid-S. Inst. of Self Def. Shooting, Inc., 137 So. 3d 212,
217 12 (Miss. 2014) (identifying a lack of judicially discoverable and
manageable standards for resolving it, and the potentiality of embarrassment
from multifarious pronouncements by various departments on one question as
unmistakable marks of a nonjusticiable political question) (quoting Baker v.
Carr, 369 U.S. 186, 217 (1962)).
10

The logic of Allain compels the conclusion that would be impossible to

undertake judicial resolution of Representative Hughess grievance without
expressing lack of respect due coordinate branches of government. Ghane,
supra, 137 So. 3d at 217 (quoting Baker v. Carr).
11

In addition, as previously observed, Section 59 falls under the heading

Rules of Procedure. Miss. Const. art. 4, 59. No one will deny that the
judiciarys authority to promulgate rules necessary to accomplish the
judiciary's constitutional purpose, Newell v. State, 308 So. 2d 71, 77 (Miss.
1975), carries with it the authority to interpret those rules. By parity of
reasoning, the authority to interpret the Legislatures rules of procedure is
likewise vested in the Legislature. This, then, amounts to a textually
demonstrable constitutional commitment of the issue to a coordinate political
department. . . . Ghane, supra, 137 So. 3d at 217 (quoting Baker v. Carr).
Senate Rule 112 allows any member to raise a point of order
concerning any matter of procedure, which would, necessarily, include the
manner in which bills are read. See Senate Rules, Rule 112. The same is true
in the House, where Rule 4 provides that the Speaker decides all questions of
12

and that he had made no attempt to exhaust same.13 Its issuance required the
Circuit Court to interpolate words (such as normal) into Section 59, without
any historical or other basis for doing so. Moreover, Representative Hughes
made no showing of harm (indeed, the record conclusively establishes the
absence of harm14). In addition, the TRO did not, like a typical injunction,

order, subject to an appeal by any member. . . . House Rules, Rule 4. It was

at all times open to Representative Hughes to appeal to the House the
Speakers determination that a particular bill had been read within the
meaning of Section 59.
Further, as this court observed in Dye, either chamber may amend its
rules at any time it wish[es], consistent with the Constitution. Dye, 507 So.
2d at 347; see also Hall v. State, 539 So. 2d 1338, 1345 (Miss. 1989) ([T]his
Courts rule-making power is a function of our constitutions command that
the three great governmental powers be separate.). The same is true today;
both temporary and permanent changes to the rules may be made at any time
by the membership of the Senate or the House. See Senate Rules, Rule 30; see
also House Rules, Rule 87. Therefore, the members are free to amend the rules
of their respective chambers to specify exactly how a bill should be read, at
what speed, how many times, etc.
This fact ought, in and of itself, have precluded the issuance of the
TRO. See, by analogy, Everitt v. Lovitt, 192 So. 2d 422, 428 (Miss. 1966) (in
Mississippi the doctrine under which no equitable relief or extraordinary relief
is available where there is an adequate remedy at law has been extended to
embrace administrative remedies.).
13

There is no claim in the record that members of the Legislature lack

access to the bills, electronically or otherwise. In fact, the Clerk of the Houses
affidavit says otherwise. R.16-17; R.E. 15-16. Common sense teaches that
having word-searchable access is vastly more efficient, for any legitimate
legislative purpose, than anything the TRO may be said to have mandated.
Surely this is not without significance to a jurisprudence that, when
interpreting our Constitution, keep[s] in mind the object desired to be
accomplished and the evils sought to be prevented or remedied, Allain, supra,
441 So. 2d at 1335 (internal quotation marks omitted), and recognizes that
14

10

preserve the status quo; it was, rather, a mandatory injunction, the most
extreme type known.15 And it was a mandatory injunction aimed at the elected
head of a coordinate branch of government, having the practical effect (and
perhaps the intent) of [s]top[ping] the ongoing legislative process, Tuck, supra,
798 So. 2d at 407, so that the judiciary might undertake to scrutiniz[e] the
daily doings of the legislature. Hooker, supra, 87 So. 3d at 438 127
(Randolph, J., dissenting) (quoting Hunt, 11 So. at 601). It is difficult to
conceive of a weaker case for the exercise of the important power of the
judiciary.

in giving a construction which will extend to-day to the fair boundaries of that intention,
the court is not to be constrained by the technical or literal meaning of the words used
and as then used, nor to those words are we to give only the meanings of them as known
to the framers of the instrument at the time of its promulgation; and particularly is this
true in respect to provisions intended to prevent or remedy definite evils. . . .
Moore v. Gen. Motors Acceptance Corp., 125 So. 411, 412 (Miss. 1930).
15

Mandatory injunctions will never be granted unless extreme or very serious damage at
least will ensue from withholding that relief; nor will they be issued in doubtful cases * *
*. 28 Am.Jur., Secs. 1722, states that a mandatory injunction is a rather harsh remedial
process and is not favored by the courts. It is not regarded with judicial favor and is used
only with caution and in cases of great necessity. The case must be one clearly disclosing
irreparable injury to the complainant.
Mississippi State Highway Comm'n v. Spencer, 101 So. 2d 499, 506 (Miss.
1958) (ellipsis original) (adding that A mandatory injunction will not issue to
control the exercise of discretionary acts by public officers or servants.).
11

CONCLUSION
Separation of powers, which is, quite literally, the first and foremost
object of the Mississippi Constitution, holds that no branch ought to possess,
directly or indirectly, an overruling influence over the others in the
administration of their respective powers. Allain, 441 So. 2d at 1336 (quoting
The Federalist, No. 48 (J. Madison) (J. Cooke ed. 1961)). For more than one
hundred years this Court, honoring this great principle, has declined to
intercede in disputes concerning the Legislatures internal rules of procedure,
leaving their resolution to the members. The Speaker of the Mississippi House
of Representatives is deserving of this same historical deference today.
Respectfully submitted, this the 14th day of June, A.D. 2016.
s/Robert M. Frey
Mark W. Garriga (Miss. Bar No. 4762)
Robert M. Frey (Miss. Bar No. 5531))
P. Ryan Beckett (Miss. Bar No. 99524)
ATTORNEYS FOR AMICUS CURIAE
TATE REEVES, IN HIS CAPACITY
AS THE LIEUTENANT GOVERNOR
OF MISSISSIPPI
OF COUNSEL:
Butler Snow LLP
200 Renaissance at Colony Park, Suite 1400
1020 Highland Colony Parkway (39157)
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
(P) (601) 948-5711
(F) (601) 985-4500
(E) mark.garriga@butlersnow.com
(E) bob.frey@butlersnow.com
(E) ryan.beckett@butlersnow.com
12

CERTIFICATE OF SERVICE
I certify that I have this day electronically filed the foregoing Amicus
Curiae Brief with the Clerk of Court using the MEC system which sent
notification of such filing to the following:
Michael B. Wallace
Rebecca Hawkins
Charles E. Cowan
WISE CARTER CHILD & CARAWAY, P.A.
Post Office Box 651
Jackson, Mississippi 39205-0651
S. Ray Hill, III
Clayton ODonnell, PLLC
1300 Access Road, Suite 200
Oxford, Mississippi 38655
I further certify that this day I caused to be served by first class mail a
true and correct copy of the foregoing Brief to the following:
Honorable Winston Kidd
Hinds County Circuit Judge
Post Office Box 327
Jackson, Mississippi 39205
This, the 14th day of June, A.D. 2016.
s/Robert M. Frey
ROBERT M. FREY

13