I Beg Your Pardon!?

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Posted July 14, 2015

Most every state hands the pardon power to its governor. It is society’s great good fortune that most of us most of the time believe there should be such a politically created power of “mercy and grace,” 1 and so this power is enshrined in constitution after constitution. Granting pardons is altogether consistent with Judeo–Christian ethics, that most of us most of the time say we accept.

The pardon power is theoretically as broad as it is sparingly exercised. No one in the western world in January of 2012 can doubt why the exercise of this humane power is left to those last moments before the governor walks out the door. The best that can be said about In Re Hooker, 2 decided March 8, 2012, is that it put an end to the present pardon firestorm.3

The Court Kids Itself

“At the outset, we wish to state that this case is not about whether the Governor is above the law,” the lead opinion in Hooker (¶1) begins. The practical effect of the 6-3 decision is otherwise. The Governor can indeed put himself above the law, if he has wits and minions attentive enough to detail. All he has to do is make the evidence of his acts “facially valid.” (¶2).

No one seriously argues that the Justices should “assume for ourselves the absolute power to police the other branches of government…” (¶1). Yet the Mississippi Supreme Court has always had the constitutionally restrained power and responsibility to police the other branches of government. Most of us argue that is good and proper and, best of all, settled. What else is judicial review about?

There are plenty of quite real “checks and balances” in play, assuring that in practice and in time, any power the Court might try to make “absolute” will be constrained. Just as the pardon power is a check on the judiciary, judicial review of whether the Governor has exercised the power consistent with the Constitution is a check on the executive. (¶24, n. 22).

The Duty Of Judicial Review Is As Broad As Need Be

Of course the Court has the power of judicial review where the Governor’s excess of his authority affects a citizen in his personal or property rights. (¶¶1, 50); State v. McPhail, 180 So. 387, 391-392 (Miss. 1938). But that is not its limit, as one dissenting Justice well points out. (¶143).

In Alexander v. Allain, 441 So.2d 1329 (Miss. 1983), the Court quite appropriately policed another branch of government, striking down legislation giving House and Senate members control of executive boards and agencies, though no “justiciable violation of a personal right” was alleged. (After that ruling, the Legislature deleted the Justices expense allowances from the next Court budget.)

Section 33 of the Constitution vests in the Legislature the power to legislate (at issue in Alexander) as fully as Section 124 of the Constitution vests the pardon power in the Governor.

For the Court to be called upon to discharge its duty of judicial review, one needs only a credible claim that the Governor’s “exercise exceeds constitutional parameters,” (¶89) made by one with standing. It cannot be seriously doubted that the Attorney General has such standing.

Assuming arguendo that a personal right is requisite (which it is not), such is readily found in the rights conferred on persons who have been victims of crimes. See Miss. Const., § 26(A)(1), and Miss. Code §§ 99-43-1, et seq.

In substantial part, Section 124’s mandate that the pardon applicant publish for thirty days “in some newspaper in the county where the crime was committed” is a means of notifying the victim and his or her family that the perpetrator has applied for a pardon. Sections 26(A)(1) and 124 should be read together. The Attorney General has the authority to go to court to enforce victims’ rights.

Hooker’s lead opinion argues: “[I]t fell to the governor alone to decide whether the Constitution’s publication requirement was met.” (¶5). Where there may be grounds for doubt, perhaps, such as what “thirty days” means in practice. But where the issue is a straight up and down question - whether “the applicant shall have published [anything at all] for thirty days”—No.

The Dead Give Away

It speaks volumes that the Hooker majority relies foremost on Ex Parte Wren, 1886 WL 3462 (Miss. 1886) (¶¶28-41, 62, 72), an opinion as ill-argued as it is ancient. That a case was decided under the 1869 Constitution does not put it off limits, if it is well reasoned. However, Wren is poorly reasoned by any lights, particularly the lengthy quote Hooker resurrects (¶40), combining familiar fallacies, the domino theory and a parade of horribles. The citation to Hunt v. Wright, 11 So. 608 (Miss. 1892) (¶¶52-54, 62) is no better.

A concurring opinion takes up the point from Wren and fears that “every gubernatorial pardon would be subject to judicial review — not just upon the face of the pardon, but upon evidentiary inquiries into whether the publication requirement were met to the satisfaction of this Court.” (¶76). But this is not so at all.

The familiar analogy is the Court’s authority to review findings of fact. Where there is evidentiary support, the jury’s finding stands. Only where there is no credible evidence supporting the jury’s verdict may the Court intervene. That judicial review of the Governor’s finding may be more constrained does not mean it is not there at all.

Remember Justice Griffith?

Griffith’s Chancery Practice has fallen into disuse. Young lawyers know little of its author. All should read State v. McPhail, 180 So. 387 (Miss. 1938) (and not just for its historical reminder of “The Gold Coast” and its once “glaring notoriety.”)

The Hooker majority cites McPhail. (¶¶43-45, 59, 62). Nowhere mentioned is Justice Virgil Griffith’s rhetoric and reasoning which utterly undermine Hooker, as one dissenting Justice is quick to point out. (¶¶118-21).

Official action…must be within the Constitution and the laws, and the facts must be such as to uphold or justify the exercise of the official authority which in a given case is exercised.

McPhail, 180 So. at 391 (emphasis supplied). If, in fact, the pardon applicant did not “publish [something] for thirty days, in some newspaper in the county where the crime was committed, … ,” then there has been no “official action … such as to uphold or justify the exercise of the official authority [the pardon power].” Id.

Justice Griffith’s words are sufficient unto the day:

If any officer…attempt to exercise an authority… upon a state of facts which does not bring the asserted authority into existence, his action is … the subject of judicial review and remedial rectification… McPhail, 180 So. at 391, appropriately quoted in a Hooker dissent. (¶89).

Of course the Governor “[i]s the sole judge of the sufficiency of the facts and of the propriety of granting the pardon,” (¶47), quoting Montgomery v. Cleveland, 98 So. 111, 114. But this cannot and does not mean that the Governor can make up facts that are not there.
The Montgomery premise the Hooker majority cites presupposes that there are facts whose sufficiency the Governor may judge. If there be nothing that might arguably be deemed a “publi[cation] for thirty days,” the Governor has nothing to do.

Of course as a textual matter the Governor’s pardon power “is not limited by any other provision of the State constitution, …” (¶47), quoting Pope v. Wiggins, 69 So. 2d 913, 915 (Miss. 1954) (emphasis in original). The limits within Section 124 itself, however, are not “any other provision.” One of those limits, as a point of plain English, is that “the applicant therefor shall have published for thirty days…”

Pardons Are A Function Of Law, Not Mercy Or Grace

It is less than helpful to have dissenting Justices declare Hooker “a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State.” (¶84). This just feeds the frenzy.

I am not surprised that there might be 215 convicted felons in this state worthy of executive clemency, without “most of them…no longer in custody.” (¶6). In a variety of contexts, I have interacted with the correctional authorities of this state, and those within their custody, since the late 1960’s. I rather suspect there are more than 215 deserving of clemency.

On the other hand, nothing said here passes judgment on whether a single one of this particular 215 is worthy of clemency. I do not know the facts. I have taken media reports with many, many grains of salt, particularly those of political pontificants condemning the Governor’s actions.

If in fact one or more pardoned persons published nothing for thirty days in some newspaper in the county where the crime was committed, that pardon is unlawful. The positive law declares my thoughts whether the applicant is worthy beside the point. It is the Constitution that commands the Court to enforce the positive law.

A Wise Dissent

I know personally all of the Justices. They are friends and respected colleagues at the bar. The one I know the least (because he is so young) put it best in dissent. (¶¶133-48). Though I have quibbles at the margins, his opinion calls to mind the well chosen words of Chief Justice Charles Evans Hughes:

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.4 Chief Justice Charles Evans Hughes

Here’s to a future day when good lawyers will read the controlling opinions in Hooker and gasp, “I beg your pardon?!?”

  1. Montgomery v. Cleveland, 98 So. 111, 114 (Miss. 1923), quoted in dissent in In Re Hooker, 2012 WL 745062 (¶136) (Miss. 2012).
  2. In re Hooker, — So.3d —, 2012 WL 745062 (Miss. May 17, 2012), reh’g denied (May 17, 2012).
  3. This piece is no substitute for reading with an open mind all six opinions that make up Hooker, and most more than once.
  4. Charles Evans Hughes, The Supreme Court of the United States: Its Foundations, Methods, and Achievements: An Interpretation 68 (1928).