IN THE FIRST JUICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

Transcription

1 IN THE FIRST JUICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI THE STATE OF MISSISSIPPI ex rei. ATTORNY GENERA JIM HOOD 1'1 L E PLAITIFF v..jif.9\min NO CIV-D GOVERNOR HALEY BAROUR BY D.C. PARBARA DUNN, CIRCUIT CLERK DEFENDANT MOTION OF GOVERNOR HALEY BAROUR TO DISMISS FOR LACK OF SUBJECT MATTER JUSDICTION OR, IN THE ALTERNATIV, FOR JUGMENT ON THE PLEADINGS Honorable Haley Barbour, Governor of the State of Mississippi, by and through his counsel, respectfully moves to dismiss the Complaint, filed January 2,2008, pursuant to Rule 12 of the Mississippi Rules of Civil Procedure. In support, the Governor presents the following: STATEMENT OF UNDISPUTED FACTS 1. Honorable Trent Lott, United States Senator of Mississippi, was re-elected to the United States Senate on November 7, 2006, for a fourh six-year term that began in January of 2007 and ends on January 3, Senator Lott resigned from offce on December 18, The unexpired term for the seat held by Senator Lott begins on December 18, 2007 and rus though January 3,2013, that is, a period of time that is longer than 12 months from the date of his resignation from the United State Senate. 2. The Governor received on December 20, 2007, the Offcial Notice from the Secretary of the United States Senate advising the Governor of Senator Lott's resignation. Pursuant to the Seventeenth Amendment of the United States Constitution and the state election laws, the Governor issued on December 20, 2007, a WRT OF ELECTION that designates November 4, 2008, as the date for holding an election when the qualified electors of the State

2 may elect a United States Senator to fill the vacancy that has happened as a result of this resignation. 3. Until the vacancy in this seat in the U.S. Senate is filled by popular election, the Governor is authorized - as expressly provided by the Seventeenth Amendment - to make a "temporary appointment" to the seat pursuant to state law. The Governor appointed Honorable Roger Wicker on December 31, 2007, to serve as the temporary appointee for this seat until it is filled pursuant to the November 4 special election. 4. Attorney General Hood fied the instant action against the Governor, in his offcial capacity as the Governor of Mississippi. Attorney General Hood's Complaint For Declaratory Judgment and Other Relief alleges that the WRT OF ELECTION issued by the Governor violates Ar. I, 4, and the Seventeenth Amendment of the United States Constitution; Ar. I, 2 & Ar. IV, 33 & 103 of the Mississippi Constitution of 1890; and Miss. Code (1972), and asks that certain injunctive relief be issued by this Cour against the Governor. 5. With his Complaint, Attorney General Hood also fied a Motion For Injunctive, Declaratory, And Other Relief. 6. On this date, January 9, 2008, the Governor has fied and served the following pleading, motion, and opposition: (a) Answer And Defenses to the Complaint For Declaratory Judgment and Other Relief; (b) Motion To Complaint Dismiss For Lack Of Subject Matter Jurisdiction Or, In the Alternative, For Judgment On the Pleadings; (c) Opposition to Attorney General Hood's Motion For Injunctive, Declaratory, And Other Relief etc. The Governor has simultaneously served his Memorandum Of Authorities In Support Of The Motion To Dismiss And In Opposition To The Motion For Injunctive, Declaratory, And Other Relief etc. 2

3 7. The Circuit Cour has set a hearing on the forgoing pending motions for Monday, Januar 14,2008, at 1:30 p.m., at the Hinds County Courhouse, Jackson, Mississippi. THE CIRCUIT COURT DOES NOT HAVE JUSDICTION OVER THE SUBJECT MATTER OF THE COMPLAINT 8. The Circuit Cour does not have jurisdiction over the subject matter of the Complaint for the following reasons: A. The Governor has the exclusive authority under the United States Constitution and the laws of Mississippi to issue the WRT OF ELECTION callng the special election. 1. The Seventeenth Amendment places the process of filling Senate vacancies exclusively in the hands of the Governor, the Legislatue, and the people. Thus neither the Attorney General nor the cours of Mississippi have any power to involve themselves in that process. The Attorney General, therefore, lacks standing, and this Cour lacks subject matter jurisdiction. 2. When issuing the WRT OF ELECTION the Governor was acting under color of federal, not State, law, and ths Cour lacks jurisdiction to review such acts. B. The Governor's issuance of the WRT OF ELECTION is an administrative political act delegated solely to him under the Seventeenth Amendment of the United States Constitution and pursuant to state law adopted by the State Legislatue pursuant to the Seventeenth Amendment. Separation of powers principles under the State Constitution prevents the cours of Mississippi from reviewing the actions of the Governor. Furhermore, his actions are executive in natue, and in no event can they be properly characterized as "core" legislative acts that impermissibly encroach upon the authority granted the State Legislative Deparment under the 1890 Mississippi Constitution. C. The Governor's act of issuing the WRT OF ELECTION is a nonjusticiable political act that is not subject to judicial review. D. This action must be dismissed because the Cour lacks jurisdiction to issue extraordinary writs or an injunction against the Governor. E. This action must be dismissed because the Cour lacks jurisdiction to enjoin the WRT OF ELECTION. 3

4 F. Attorney General Hood does not have the authority to bring a suit against the Governor of Mississippi where federal and state law give the Governor the exclusive authority to interpret and implement the forgoing election provisions, which as already seen, are strictly political in natue. THE GOVERNOR is ENTITLED TO JUGMENT ON THE PLEADINGS 9. Even were this Cour to review the Governor's implementation of the authority exclusively granted to the Governor under the Seventeenth Amendment and Seventeenth Amendment which has been adopted pursuant to the Seventeenth Amendment, the Governor has acted properly" under applicable Federal and state law and is therefore entitled to a judgment on the pleadings for the following reasons: A. Judgment on the pleadings is appropriate under Miss. R. Civ. P. 12(c) because the material facts are not in dispute, and a judgment on the merits can be rendered by lookig at the substance of the pleadings and any judicially noticed facts. B. Attorney General Hood has wholly misconstrued Miss. Code (1972), by finding exceptions and general rules in the statute where there are none and by failng to consider the express language of the Seventeenth Amendment and other provisions of the state election laws that are in pari materia with Section as substantive principles of Mississippi law expressly require. C. The vacancy of the seat "occurs" in 2008, a year in which there is a Congressional election. D. November 4, 2008 is within a year of Senator Lott's December 18, 2007 resignation. E. The vacancy does "occur" in a year in which there is a general state election. F. Because the Attorney General has no clear right to relief, the Governor's reasonable interpretation of the statute must be respected. G. If there is more than one reasonable interpretation, the Governor's interpretation is the only one that matters. H. The Chief Elections Offcer concurs with the Governor's decision. 4

5 1. The Governor's implementation of the Seventeenth Amendment and applicable state law adopted pursuant to the Seventeenth Amendment is not manfestly wrong. 10. In support the Governor relies upon the pleadings, and the legal arguments and authorities set forth in his Memorandum of Authorities In Support Of The Motion To Dismiss Or, In The Alternative, For Judgment On The Pleadings served contemporaneously with the instant Motion to Dismiss. WHREFORE PREMISES CONSIDERED, Honorable Haley Barbour, Governor of the State of Mississippi, by and through his counsel, respectfuly requests that the Cour dismiss the Complaint of Attorney General Hood with prejudice and grant a final judgment in favor of the Governor. The Governor prays for any other general or special relief as to which he may be entitled under Mississippi law. THIS, the 9th day of January, Respectfully submitted, GOVERNOR HALEY BAROUR IV C, ~a- L, hn C. Henegan (MS o. 2286) P. Ryan Beckett (MSB No ) Robert M. Frey (MSB No. 5531) Mw?lA!~ Michael B. Wallace (MSB No. 6904) ATTORNEYS FOR HONORABLE HAEY BARBOUR, GOVERNOR OF THE STATE OF MISSISSIPPI 5

6 OF COUNSEL: OFFICE OF GOVERNOR HALEY BAROUR Post Offce Box 139 Jackson, MS (0) (F) BUTLER, SNOW, O'MAR, STEVENS & CANADA, PLLC 17th Floor, AmSouth Plaza Post Offce Box Jackson, Mississippi (P)(601) (F)(601) WISE, CARTER, CHILD, & CARWAY, P.A. Post Office Box 651 Jackson, Mississippi (P)(601) (F)(601) CERTIFICATE OF SERVICE I, John C. Henegan, an attorney for Governor Haley Barbour, do hereby certify that I have this day caused to be hand-delivered two (2) true and correct copies of the foregoing instrument to be hand delivered to the following person: Hon. Harold E. Pizzetta TIl Chief, Civil Litigation Division Special Assistant Attorney General Offce of the Attorney General Post Offce Box 220 Jackson, Mississippi hpizz(iago.state.ms. us THIS, the 9th day of January, ir ~ L.. fk L Jo C. Henegan (MSB. 2286) Jackson v.2 6