State and Local Legal Blog

Folks are teaching…who is listening?

Watching the fallout over actions taken by the board of aldermen in Southaven and Ocean Springs has reminded me of what a great responsibility of governance is placed on the shoulder of aldermen, particularly in code charter cities in Mississippi. While given broad discretion in many matters, actions which are arbitrary and capricious are subject to judicial review.  Thus a Department of Justice investigation into the denial of a permit to Psycamore, which desired to place an outpatient facility within the city limits and the investigations by the state auditor and the FBI into the situation with Southaven’s mayor.

Addressing the responsibilities as alderman is more difficult than many of those who run for office might think. But they are forced to learn fast.  A candidate who is not an incumbent goes from being John Q. Public to an authority on municipal government within 24 hours.

The Mississippi Municipal League, The Stennis Institute of Government, and numerous other groups attempt to aggressively train aldermen in order that they may legally and effectively operate within their city government.  So folks are teaching……but who is listening?

The Mississippi Code sections on approving claims dockets are clear.  So are the liabilities for authorizing illegal expenditures.  The federal law is clear on protected classes, such as individuals with disabilities.

It may be time for “Alderman 101”.

The Word is Clemency

The news this past week has been all about clemency.  For those of you who remain unsure what clemency means, it refers to the broad executive power to pardon (invalidate guilt and punishment of a convicted individual), reprieve (postpone execution), or commute a sentence (reduce the severity of punishment).  At the end of his term, former Governor Barbour pardoned a significant number of individuals who had been convicted of heinous crimes (a number of whom murdered their wives) — hence the “hue and cry”.  (It should be noted that previously during his terms in office he had used his executive pardon power quite infrequently.)

At this point, Attorney General Jim Hood has obtained a temporary restraining order and injunctive relief from Circuit Court Judge Tomie Green based on his ability to demonstrate that “there is a substantial likelihood of success on his claim that the subject pardons violated Section 124 of the Mississippi Constitution….[that] there is a sufficient threat of irreparable injury should the subject individuals be released based upon the purported gubernatorial pardons….[and] that the threat of injury sufficiently outweighs any potential threat posed to the defendants by granting the request for injunctive relief.”  Jim Hood v. Christopher Epps, et al, Hinds  County Circuit Court, First Judicial District #251-12-00033(w).  Several District Attorneys have also indicated their desire to effect injunctive relief.  Governor Bryant has indicated that he would support legislation or a constitutional amendment to limit executive clemency powers, and among others, Representative David Baria, District 122, a Democrat from Hancock County, has filed a bill to limit executive clemency.

While the clamor will not subside for quite some time, actions to limit executive clemency power should not be considered in such an emotionally charged environment.  While these particular pardons may appear as excesses, it is perhaps worth noting that executive clemency has a long history both in our democracy and English common law, as well as other democracies that derived their parliamentary law from the British colonial model, all somewhat derivative from the Greek model.   The fact that “it has always been done that way” does not make it right, but it does give us a panoply of history and tradition to consider.  While the ancient Greeks gave the power to pardon to the Ecclesia (assembly, legislature), allowing it to annul verdicts of the Discasteries (courts) [Executive Clemency in Capital Cases, 39 NYUL Rev. 136 (1964)], essentially this same power was given in England to the King in order for him to ameliorate injustice or grant mercy.

The three historical rationales which establish justification for clemency are these:  1 – unrestrained mercy, needing no pretense of fairness; 2 – a quasi-judicial rationale suggesting that those given authority and power over clemency may consider factors that were not presented or considered by trial judges, juries or appellate courts; and 3 – a retributive concept, intending that only the most deserving among murders are executed.  An authority no less important than the U.S. Supreme Court, in speaking to the issue, noted:  “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”  Herrera v. Collins, 113 SCt 853, 866 (1993).

While it may be argued that there was no miscarriage of justice to be remedied in former Governor’s acts of clemency, amendment or limitation of executive clemency power is a decision that should be based on rational consideration and not the tide of emotion.

Mississippi – the Red State

With all statewide elected officials, with the exception of Attorney General Hood, carrying the GOP tag, and a majority of GOPs in both of Mississippi’s legislative houses – a first since reconstruction, Mississippi is as close as you can get to “full fledged Red.”  House Speaker Phillip Gunn of Clinton is the first GOP speaker since 1876.  One of the contributions to the GOP majority in both houses are the new legislators:  21 new GOPs in the House as opposed to only 11 new Dems;  13 new GOPs in the Senate as opposed to only 2 new Dems.  Another is incumbents who have switched sides of the isle.

The preliminaries of the session are over.  We are entering week 2 and the work begins.  How will the GOPs shape our state?  And how will the Dems adjust to their new position of “sho’ nuff'” loyal opposition?  Everyone will be feeling their way for a bit.  I am looking for an exhibition of grace and civility on the part of all legislators as they make this adjustment.

It’s a new era in Mississippi!