Barbour v. State of Miss.
| Docket Number: | 2008-EC-00115-SCT Linked Case(s): 2008-EC-00115-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-06-2008 Opinion Author: Randolph, J. Holding: ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED. |
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| Additional Case Information: |
Topic: Writ of election - Writ of mandamus - Section 23-15-855 - U.S. Constitution Amend. XVII Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Lamar, JJ. Judge(s) Concurring Separately: Dickinson, J., Concurs With Separate Written Opinion Joined by Smith, C.J., Waller, P.J., Easley, Carlson, Randolph and Lamar, JJ.; Easley, J., Specially Concurs With Separate Written Opinion. Dissenting Author : Graves, J., with separate written opinion. Dissent Joined By : Joined In Part by Diaz, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 01-14-2008 Appealed from: Hinds County Circuit Court Judge: Bobby DeLaughter Disposition: The circuit court issued a Memorandum Opinion and Order which granted judgment against the Governor, opining that the Writ of Election violated the United States and Mississippi Constitutions and the statutory laws of this state, and declaring the Writ of Election was a nullity, being void ab initio. The circuit judge further opined that the Seventeenth Amendment to the United States Constitution and Section 23-15-855 constitute legislative mandates that . . . [the] Senate vacancy election be held within ninety (90) days of the Governor’s December 20, 2007 Proclamation of Writ of Election, i.e., on or before March 19, 2008[.] Case Number: 251-08-02-CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | HALEY BARBOUR, GOVERNOR OF THE STATE
OF MISSISSIPPI |
HITE COLBY LANE,
JOHN C. HENEGAN,
MICHAEL B. WALLACE,
DONNA BROWN JACOBS,
PATRICK RYAN BECKETT,
ROBERT M. FREY |
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| Appellee: | THE STATE OF MISSISSIPPI EX REL. ATTORNEY GENERAL JIM HOOD | OFFICE OF THE ATTORNEY GENERAL BY: HAROLD EDWARD PIZZETTA, III, RICKY G. LUKE, MEREDITH McCOLLUM ALDRIDGE | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Writ of election - Writ of mandamus - Section 23-15-855 - U.S. Constitution Amend. XVII |
| Summary of the Facts: | On December 20, 2007, Governor Haley Barbour issued a Writ of Election establishing November 4, 2008 (a date on which a general congressional election is set), as the date for the special senatorial election to fill the vacancy created by United States Senator Trent Lott’s resignation. Thereafter, Attorney General Jim Hood filed suit alleging that the Writ of Election violates the United States Constitution, the Mississippi Constitution, and Mississippi Code Annotated Section 23-15-855, and seeking a writ of mandamus, prohibition, injunctive relief, and/or a declaratory judgment voiding or nullifying the Writ of Election, and requiring that a special election be held within ninety days of the Governor’s proclamation. The circuit court granted judgment against the Governor. The Governor appeals, and the Attorney General cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Writ of mandamus The circuit court denied the Attorney General’s motion for preliminary injunctive relief and granted the Governor’s motion to dismiss, or for judgment on the pleadings, as to the portions of the Attorney General’s complaint which seeks a writ of mandamus, other remedial writs, or injunctive relief of any kind. The Attorney General argues this was error. The Supreme Court repeatedly has prohibited issuance of a writ of mandamus against the Governor. Therefore, the Attorney General’s cross-appeal is without merit. Issue 2: Writ of election The Seventeenth Amendment to the U.S. Constitution grants general power to the Governor to issue the writ of election and grants a specific power to direct filling of the vacancy by election to the Legislature. In response, the Mississippi Legislature adopted section 23-15-855 for direction to fill vacancies in the office of United States Senator. If the legislative mandate in section 23-15-855 is ambiguous or silent, then the Court must determine whether the Governor’s construction of the statute is permissible. If the Court deemed the legislative mandate in section 23-15-855 to be unambiguous, then the Governor’s duty thereunder is ministerial and not discretionary as it is imposed by law and its performance is not dependent on his judgment. Given the timing of Senator Lott’s resignation, the legislative directive in section 23-15-855 is ambiguous when applied to the specific facts of this case, or more clearly stated, is silent with respect to the specific issue,” i.e., when a Senator resigns in the same year as a general state or congressional election after the general election is held that year. Of course, this void is unquestionably within the Legislature’s province to amend, should it be so inclined. In section 23-15-855(2), the term “year” within the phrase “one (1) year,” plainly does not refer to one “calendar year.” The meaning of the term “year” as a 365-day year in subsection (2) is clear, therefore, this meaning will be attached to it throughout the statute unless it clearly appears from the whole statute that it was the intention of the legislature to use it in different senses. No such contrary intention is clearly apparent. Section 23-15-855(1) contains a clause adequately addressing scenarios in which a vacancy occurs prior to a general state or congressional election. However, as in this case, i.e., a vacancy occurring after a general state or congressional election, the statute is silent, and thus fails to implement the specific power granted to the Legislature by the Seventeenth Amendment for directing the filling of the vacancy by election. As portions of section 23-15-855 are ambiguous, and others silent, the Writ of Election which designated November 4, 2008, as the general election day for electing a Senator to complete the term of office is not constitutionally infirm. |
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