After reviewing the Mississippi Supreme Court’s 77–page opinion upholding Gov. Barbour’s pardons, I ended up where I started: leaning to the conclusion that pardons aren’t valid when the Constitutional publication requirement wasn’t met. My take could simply be an example confirmation bias at work.

Majority Agrees that Constitution Requires Publication

The majority framed the issue as follows:

the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of government has constitutional authority to void a facially-valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124’s publication requirement.

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As stated earlier, the issue before us is not whether the thirty-day-notice provision must be complied with—it must. Instead, the question to be resolved today is which branchhas the final reviewing authority over whether the publication procedure was met.

The majority concluded that the Governor gets to decide if the notice provisions were complied with—even in cases when it’s stipulated that they weren’t. The majority’s opinion heavily relied on Ex. Parte Wren, 63 Miss. 512 (1886).  More on that later.

Highlights from the dissents

The first sentence of Justice Randolph’s dissent garnered much attention:

Today’s decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State.

 But other sections of Randolph’s dissent are just as powerful:

Our Constitution limits the pardoning power of the governor. See Miss. Const. art. 5, § 124 (1890). In the absence of publication, a pardon is outside the scope of the governor’s authority.

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Can these putative pardonees ignore the Constitution? The Constitution says no. Can the governor ignore the Constitution? The Constitution says no. Does the executive branch possess the right to deny and impair substantive rights “retained by, and inherent in, the people”? See Miss. Const. art. 3, § 32 (1890). The Constitution says no. Does the executive branch possess the right to waive the people’s substantive right to “petition the government on any subject”? See Miss. Const. art. 3, § 11 (1890). The Constitution says no. The majority relinquishes the constitutional question to the governor, and then concludes that the governor’s decision is not reviewable by a court. See Maj. Op. at ¶¶ 5, 27, 45. Where does the Constitution impart to the governor the power to be the sole judge of the validity or legality of his actions?

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Mississippians did not bestow upon the governor an unconditional grant of authority to pardon.

From Chief Justice Waller’s dissent:

….Mississippi gave the governor the power to issue pardons and other forms of clemency. However, the people gave the governor this power only in certain situations. 

From Justice Pierce’s dissent:

Many issues presented to this Court require complex analysis, not always because the words before us are hard to understand; rather, because we make them so. I find this case simply an analysis of words and a determination of their legal meaning. To be clear, Article 5, Section 124, of the 1890 Mississippi Constitution is neither hard to apply nor difficult to understand. ¶134. Section 124 calls to us from 1890 and beckons this Court to read it and apply its meaning–as written. In a real sense, Section 124 is dressed up and ready to go. Sadly, the majority drives by without so much as slowing down. Thus, Section 124 will forever be waiting–its word never judicially determined.

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And by duty and necessity, the obligation of determining whether, in specific instances, one of the departments has exceeded the powers granted to it, “devolves” upon the judiciary.   Albritton v. City of Winona, 178 So. 799, 803 (Miss. 1938).By its decision today, this Court has not only abdicated the judiciary department’s contemplated role under our theory of government, it has effectively amended Section 124 of the 1890 Mississippi Constitution back to Article 5, Section 10 of the 1868 Mississippi Constitution.

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Here, this Court has been asked to resolve, authoritatively, whether the pardons issued by Governor Barbour complied with Section 124’s notice and publication requirements. But rather than decide the question, the majority re-embraces Hunt and Wren and expands their holdings to find the matter nonjusticiable. In so doing, the majority has effectively countenanced a view that almost any interpretation the executive or legislative departments may give to the Mississippi Constitution–no matter how erroneous–is now binding on the judiciary. This is a plank I choose not to walk.

My Take:

I didn’t buy it before, and I still don’t. The Court’s decision means that the Governor can do whatever he wants on pardons. Take your magic-marker and black out the Constitution’s publication requirements. If a Governor wants to sneak in a pardon for a political crony with no notice to anyone, it’s fine. The Mississippi Judiciary will not interfere.

That’s bad law in my book. Particularly for a State with a sordid history of abusing power and suppressing Civil Rights while the state judiciary sat on the sidelines—if not outright cooperated with the thugs—and left it to the federal government to enforce the law.

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.

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 conincidence? How can we trust that Wren was on 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.