IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI THE STATE OF MISSISSIPPI ex rei. ATTORNEY GENERA JIM HOOD v. GOVERNOR HALEY BAROUR PILED PLAITIFF JAN - 9 2008 CIVIL Ar.TTON NO. 251-08-02-CIV-D i3arbara DUNN, CTRUrrUt:RK. W 01. DEFENDANT ANSWER AND DEFENSES OF GOVERNOR HAEY BAROUR TO COMPLAINT FOR DECLARTORY JUGMENT AND OTHER RELIEF Honorable Haley Barbour, Governor of Mississippi, responds to the Complaint for Declaratory Judgment and Other Relief as follows: FIRST DEFENSE The Governor has at all times acted lawflly and properly in his faithful discharge of the duties given to him as the Chief Executive Officer of the State of Mississippi by the Seventeenth Amendment of the U. S. Constitution, and as lawflly delegated to the Governor pursuant to the Seventeenth Amendment by the State Legislature under Aricle IV, 33 & 103 and Aricle VI, 116 & 123 of the 1890 Mississippi Constitution and applicable Mississippi law. See 1914 Miss. Laws, ch. 148, codifed, Miss. Code An. 6833-36 (Hemingway 1917). Ths includes, but is not limited to, those Mississippi election laws that expressly authorize the Governor to perform certain administrative political acts, including (a) issuing a writ of election callng a special election to fill a vacancy that occurs in the United States Senate when the unexpired term created by the vacancy wil be for more than one year and (b) makng an interim temporary appointment to any such seat in the maner prescribed by law. See Miss. Code 23-15-855 (1972). When the foregoing provisions of law, which address the same subject marter, are read and interpreted together as the positive law of Mississippi requires, the Complaint fails to state a
colorable constitutional claim, and the Governor is entitled to judgment as a matter of law based upon the pleadings. See Miss. R. Civ. Pro. 12(c). SECOND DEFENSE Plaintiff Attorney General Hood, who is a member of the Judicial Department under the Mississippi Constitution of 1890, does not have the legal authority to bring an action against the Governor of Mississippi. The Governor is the Chief Executive Offcer of the State under the 1890 Mississippi Constitution, and his Offce has the exclusive authority under the Seventeenth Amendment of the United States Constitution, the 1890 Mississippi Constitution, and applicable State law to issue a writ of election setting a date for the special election to fill the vacancy that exists in one of the Mississippi seats to the United States Senate. Accordingly, Attorney General Hood does not have the legal authority to bring a legal action against the Governor for his having issued the WRT OF ELECTION, dated December 20, 2007, a copy of which is attached as Exhbit B to the Complaint. TIDRD DEFENSE The action of Attorney General Hood must be dismissed because the issue presented in his Complaint for Declaratory Judgment and Other Relief is a non-justiciable administrative political question that is not reviewable by the courts of Mississippi under the strict separation of powers provisions of the 1890 Mississippi Constitution. FOURTH DEFENSE The action of Attorney General Hood should be dismissed because the courts of Mississippi are without jurisdiction or the power to issue extraordinary writs of mandamus or prohibition or injunctions against the Governor of Mississippi. 2
FIFTH DEFENSE Under the Seventeenth Amendment of the United States Constitution, the 1890 Mississippi Constitution, and applicable State law, the Governor has the exclusive authority as the Chief Executive Offcer of the State of Mississippi to issue a Writ of Election to fill the vacancy that exists as a result of the resignation of Honorable Trent Lott, former United States Senator of Mississippi, which took place on December 18, 2007, a.id to make a temporar appointment to the United States Senate until the vacancy is filed by special election. SIXTH DEFENSE The Circuit Cour of the First Judicial District of Hinds County, Mississippi, does not have jurisdiction over the subject matter of the Complaint. SEVENTH DEFENSE The Circuit Cour of the First Judicial District of Hinds County, Mississippi, does not have jurisdiction to enjoin, prohibit or mandamus the Governor or other elections officers with respect to the setting or callng of elections, including the issuance of a Writ of Election. EIGHTH DEFENSE The Circuit Cour of the First Judicial District of Hinds County, Mississippi, does not have jurisdiction over the Governor, who has been sued in his offcial capacity for takng certain actions that he has the exclusive authority to perform under the Seventeenth Amendment of the United States Constitution, the Mississippi Constitution of 1890, and applicable State law. NINTH DEFENSE Since the Circuit Court of the First Judicial District of Hinds County, Mississippi, does not jurisdiction over the subject matter of this action, venue is also improper. 3
TENTH DEFENSE Attorney General Hood's Complaint fails to state a claim upon which relief can be granted. ELEVENTH DEFENSE The Governor hereby responds to the separately numbered paragraphs of the Complaint for Declaratory Judgment and Other Relief as follows: 1. The allegations contained in Paragraph 1 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, Paragraph 1 does not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 2. The Governor admits that Honorable Jim Hood is the duly elected and present Attorney General for the State of Mississippi. The remainig allegations contained in Paragraph 2 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, then the Governor denies those allegations. 3. The Governor admits the allegations of Paragraph 3 of the Complaint. 4. The Governor denies the allegations of Paragraph 4 of the Complaint. 5. The Governor denies the allegations of Paragraph 5 of the Complaint. 6. The Governor admits that Honorable Trent Lott rèsigned on December 18, 2007, as United States Senator for the State of Mississippi, thereby creating a vacancy in one of the seats held by Mississippi in the United States Senate; that vacancy continues to exist since the 4
vacancy can only be filled by an election by the qualified electors of the State of Mississippi. The Governor denies the remaining allegations of Paragraph 6. 7. The Governor admits that Aricle I, 4 and the Seventeenth Amendment of the United States Constitution speak for themselves. The remainng allegations contained in Paragraph 7 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 8. The Governor admits that Ar. I, 2, Ar. 4, 33, and Ar. IV, 103 of the Mississippi Constitution of 1890 speak for themselves, but the Governor denies that it is permissible to read those provisions of the Mississippi Constitution in isolation and without regard for other applicable provisions of the Mississippi Constitution or the United States Constitution or applicable state law. The Governor denies that the Complaint provides a true and correct statement of the provisions of Ar. IV, 103 of the Mississippi Constitution of 1890. The remaining allegations contained in Paragraph 8 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 9. The Governor admits that Miss. Code 23-15-855(1) (1972) speaks for itself, but the Governor denies that it is permissible under federal or state law to read Section 23-15-855(1) in isolation and without regard for other applicable of the state election laws or the applicable provisions of the Mississippi Constitution of 1890 or the United States Constitution. The remaining allegations contained in Paragraph 9 of the Complaint do not conform or comply with 5
the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 10. The Governor admits that Attorney General Hood issued the Opinion that is attached as Exhbit A to the Complaint. The remaining allegations contained in Paragraph 10 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 11. The Governor denies the allegations of Paragraph 11 of the Complaint. 12. The Governor admits that the Offce of the Governor of Mississippi issued on December 20, 2007, a WRT OF ELECTION, a copy of which is attached as Exhibit B to the Complaint. The WRIT OF ELECTION speaks for itself. The remaining allegations contained in Paragraph 12 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 13. The Governor admits that the Governor issued on December 20, 2007, a WRT OF ELECTION, a copy of which is attached as Exhbit B to the Complaint. The WRT OF ELECTION speaks for itself. The remaining allegations contained in Paragraph 13 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a 6
response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 14. The Governor admits that the Governor issued on December 20, 2007, a WRT OF ELECTION, a copy of which is attached as Exhbit B to the Complaint. The WRT OF ELECTION speaks for itself. The remaining allegations contained in Paragraph 14 of the Complaint do not conform or comply with the general rules of pleading set forth in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. 15. The Governor admits that there is a vacancy in one of the two Mississippi seats to the United States Senate in 2008 and that the vacancy wil be filled by a special election of the people of Mississippi to be held on November 4, 2008, as required by the Seventeenth Amendment and applicable Mississippi law. The remaining allegations contained in Paragraph 15 of the Complaint do not conform or comply with the general rules of pleading set fort in Rule 8(a) of the Mississippi Rules of Civil Procedure, and, therefore, those allegations do not require a response by the Governor. If the Governor is mistaken in that regard, the Governor denies those allegations. COUNT ONE 16. The Governor incorporates herein by reference its prior admissions and denials in response to Paragraphs 1 through 15 of the Complaint. 17. The Governor denies the allegations of Paragraph 17 of the Complaint. 18. The Governor denies the allegations of Paragraph 18 of the Complaint. 19. The Governor denies the allegations of Paragraph 19 of the Complaint. 7
20. The Governor denies the allegations of Paragraph 20 of the Complaint. 21. The Governor denies the allegations of Paragraph 21 of the Complaint. 22. The Governor denies the allegations of Paragraph 22 of the Complaint. For the forgoing reasons, the Governor denies that Attorney General Hood is entitled to the relief requested, and the Governor respectflly requests that pursuant to Rule 12 of the Mississippi Rules of Civil Procedure that a Judgment be entered in favor of The Governor and against Attorney General Hood dismissing the Complaint with prejudice. The Governor prays for any such other general or special relief as to which he may be entitled. THIS, the 9th day of January, 2008. Respectfully submitted, GOVERNOR HALEY BAROUR ~~ H. Co ylane B No. 99617) (if~e. ÅY J C. Henegan (MS No. 2286) P. Ryan Beckett (MSB No. 99524) Robert M. Frey (MSB No. 5531) 2YlJ W~ Michael B. Wallace (MSB No. 6904) ATTORNEYS FOR HONORABLE HALEY BARBOUR, GOVERNOR OF THE STATE OF MISSISSIPPI 8
OF COUNSEL: OFFICE OF GOVERNOR HALEY BAROUR Post Offce Box 139 Jackson, MS 39205 601-359-3150 (0) 601-359-3741 (F) BUTLER, SNOW, O'MAR, STEVENS & CANADA, PLLC 17th Floor, AmSouth Plaza Post Offce Box 22567 Jackson, Mississippi 39225-2567 (P)(601) 948-5711 (F)(601) 985-4500 WISE, CARTER, CHILD, & CARWAY, P.A. Post Offce Box 651 Jackson, Mississippi 39205-0651 (P)(601) 968-5500 (F)(601) 968-5519 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) tre and correct copies of the foregoing instruent upon the following person(s): Hon. Harold E. Pizzetta III Chief, Civil Litigation Division Special Assistant Attorney General Office of the Attorney General Post Offce Box 220 Jackson, Mississippi 39205 hpizzifago.state.ms. us THIS, the 9th day of January, 2008. din t.. ~ tl J C. Henegan (MS No. 2286) Jackson 2586583v.i 9