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?

***

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.

***

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.

  • Anderson

    Well, the ad hominem attack on the supreme court in 1886 is maybe the only thing that Randolph didn’t throw into his dissent. Points for creativity, anyway.
    So I suppose the Hunt decision in 1892, addressed in this explication of the argument eventually adopted by the Court, is similarly suspect?
    What is the cut-off date for disregarding precedents, then?
    I just wish Hood had made that “but those were racist judges!” argument, so I could’ve watched the Court’s response to it.
    Hunt I think, though it relied on Wren, is a better example in some respects. The Legislature was forbidden to introduce revenue bills in the last 10 days of the session, which seems to have a corresponding “public notice” aspect, giving the public a chance to hear about the bill and oppose it. But the Legislature did so anyway, and the Court held that this was a rule it could not enforce against the Legislature.

  • Philip Thomas

    Defend Wren. Go ahead. Defend it. It came out 10 years before Plessy v. Ferguson and nearly 60 years before Brown v. Board of Education. And those were U.S. Supreme Court cases.
    You don’t have to throw out all precedents, just the ones where the white supremacy of the day could have been an influence. But in a case like Wren, the date you are looking for is probably around 1970. Shocking as that sounds, we can’t ignore our State’s history.
    The majority didn’t need Wren to uphold the pardons. So I don’t think they should have used it.

  • Old Lawyer

    Interesting that two of the three dissenters are up for re-election. Also, the Court’s analogy to its own lack of authority to review the Legislature’s actions, apparently contrary to the 10-day requirement for revenue bils, is a sound one, I believe.

  • Anderson

    Upon what precedents did this supposedly racist 1886 Court rely for its holding?
    The rule which we announce as the correct one is supported by Sherman v. Story, 30 Cal. 253 [89 Am. Dec. 93]; People v. Burt, 43 Cal. 560; Evans v. Browne, 30 Ind. 514 [95 Am. Dec. 710]; Koehler v. Hill, 60 Iowa 543 [14 N.W. 738, 15 N. W. 609]; Company v. Richoux, 23 La. Ann. 743 [8 Am. Rep. 602]; Mayor v. Harwood, 32 Md. 471 [3 Am. Rep. 161]; Railroad Co. v. Governor, 23 Mo. 353 [66 Am. Dec. 673]; Swann v. Buck, 40 Miss. 268; State v. Swift, 10 Nev. 176 [21 Am. Rep. 721]; Pangborn v. Young, 32 N.J.L. 29; People v. Devlin, 33 N.Y. 269 [88 Am. Dec. 377]; Brodnax v. Groom, 64 N.C. 244.
    Moreover, “[t]he English rule is conceded to be that for which we contend.”

  • I tend to agree with the Mississippi Supreme Court that the decision should stay with the Governor alone. Pardons have been their sole power and many have exercised their right to do so. It’s not just Mississippi that has a very ugly history with regards to race. If that is the barometer than most of the U.S. would be in jeopardy if not all. I don’t see how letting the Governor have this power violates the constitution and if the solution is to throw it to the legislature than pardons will be stopped given the nature of the politicians and their unwillingness to negotiate.

  • I’m with Anderson on Wren. It is worth noting that Wren’s lawyer was also one of the major leaders in the 1890 constitutional convention, so the suggestion that he was somehow a victim of the Jim Crow era seems more than strange. As does the notion that Wren, from Louisiana, somehow was “like” a carpetbagger.
    The opinion, by Justice Campbell (who was well thought of in his day) is carefully reasoned. There is no hint in the opinion that this issue has anything to do with race or Jim Crow; only by casting everything that court did in doubt, period, can this one be questioned. What is is it other than the date that raises a question about the reasoning in that case?
    If we’re to throw out Wren, what about the provisions of the Mississippi constitution, a document intended (so said its drafter!) to institutionalize Jim Crow and disenfranchisement? It seems a little odd to make this argument in an effort to uphold something from the 1890 constitution!

  • Anderson

    Perhaps the 1890 drafters were worried that a governor might pardon a black person?

  • Bill Dees

    While I agree that Wren was correctly decided, I think it a stretch to imply that the precedents relied upon in Wren, because they were decided in states outside the South (or in England)were not the product of racial bias. (I’m not here implying that they were.) I’m pretty sure that racial bias was the norm everywhere in the US of A in 1886. Heck, 60 years later, in 1946, the United States Military was still segregated by law, and Plessey v Ferguson (separate but equal) was still the law of the land in public accommodations.

  • Anderson

    Bill, my point is that the legal rule in Wren had nothing to do with racism. Sure, racists were everywhere. Still are.