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BRAD DYE, LIEUTENANT GOVERNOR OF THE STATE OF MISSISSIPPI AND PRESIDENT OF THE SENATE OF THE STATE OF MISSISSIPPI v. THE STATE OF MISSISSIPPI

APRIL 29, 1987

BRAD DYE, LIEUTENANT GOVERNOR OF THE STATE OF MISSISSIPPI AND PRESIDENT OF THE SENATE OF THE STATE OF MISSISSIPPI
v.
THE STATE OF MISSISSIPPI, EX REL. RICHARD STEPHEN HALE AND GENE TAYLOR, MEMBERS OF THE SENATE OF THE STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I. Overview

The powers of the Lieutenant Governor of the State of Mississippi are at issue this day. Historically considered enigmatic if not schizophrenic by the political scientist, a fifth wheel on the wagon of government and often a political graveyard in the parlance of the practical, the office of our Lieutenant Governor has in recent years grown greatly in influence and effect, so much so that two Senators have called upon the Judicial Department of the state to consider critically the extent, nature, source - and legality - of powers now being exercised by the present occupant of that office.

 The Circuit Court held the Lieutenant Governor an officer of the Executive Department and as such, by our constitutional mandate that the powers of government be separate, precluded from the exercise of any powers properly belonging to the Senate, excepting only those powers expressly conferred upon him by the Constitution. We take a different view. The Senate has by constitutional authority broad powers to make rules regarding the conduct of its business. Constitutionally, the Lieutenant Governor is the President of the Senate. As such he is one eligible to have conferred upon him such authority as the Senate by rule may from time to time provide. As explained more fully below, we reverse and render on the principal appeal.

 On January 24, 1986, Senators Richard Stephen Hale *fn1 and Gene Taylor *fn2 filed their complaint in the Circuit Court of Hinds County, Mississippi, naming as defendant, Lieutenant Governor Brad Dye. In their complaint the Senators sought a declaratory judgment that Senate Rules 5, 6, 7, 17, 18, 19, 36, 37, 38, 48, 65, 74 and 75 *fn3 violate Article I, Sections 1 and 2 (separation of powers provisions) of the Mississippi

 Constitution of 1890, and that, insofar as Lt. Gov. Dye exercises powers under the purported authority of those rules, he proceeds in violation of the Constitution. Principal among the rules and power exercises challenged are those involving the Lieutenant Governor's almost plenary powers respecting appointment of committees and referral of bills to committees. The vice said to be found in these rules is that they constitute an unconstitutional delegation of legislative power to the Lieutenant Governor who is a member of the Executive Department of government. The Complaint finally sought entry of an order enjoining Lt. Gov. Dye from exercising the powers conferred on him by these rules.

 Following Lt. Gov. Dye's answer, Senators Hale and Taylor filed a motion for judgment on the pleadings. Dye responded, opposing that motion and filing his motion for summary judgment. Thereafter, Senators Wendell Hobdy Bryan, William W. Canon, Walter A. Graham, Alan M. Heflin, C. R. Montgomery and F. M. Smith, Jr. filed a motion for leave to file a brief and present argument as amicii curiae, which the Circuit Court granted.

 On November 4, 1986, the Circuit Court entered a declaratory judgment holding that Lt. Gov. Dye was a member of the Executive Department of the government, that Senate Rules 7, 36, 37, 38, 48, 74 and 75 were unconstitutional, and that insofar as Lieutenant Governor Dye exercised powers provided in those rules he exercised legislative powers prohibited to him by Sections 1 and 2 of the Constitution. The attack upon Senate Rules 5, 6, 17, 18, 19 and 65 was rejected.

 Lt. Gov. Dye timely perfected the present appeal, challenging so much of the declaratory judgment as invalidated Senate Rules 7, 36, 37, 38, 48, 74 and 75 and held unlawful his exercise of the powers conferred by those rules. Senators Hale and Taylor have cross-appealed and attack so much of the judgment below as left in force Senate Rules 5, 6, 17, 18, 19 and 65.

 Senators Bryan, Canon, Graham, Heflin, Montgomery, and Smith have filed a brief as amicii curiae, supporting in substantial part the view of Lt. Gov. Dye and urging reversal.

 III. Pre-Merits Issues

 A. Subject Matter Jurisdiction

 Lieutenant Governor Dye first objects to the Circuit Court's determination that it had subject matter jurisdiction of this action. The essence of the point, as we perceive it,

 is that the suit brought by Sens. Hale and Taylor, as Plaintiffs, was in the nature of a quo warranto action and that, because of certain alleged deficiencies in the Senators' efforts bring themselves within the strictures of that ancient writ, the complaint should have been dismissed. Blended with these apples are an orange and a grapefruit in the form of a challenge to the Senators' standing to sue and the claim that only the Attorney General could bring a suit such as this - the same Attorney General, we might add, who has elected to represent Lt. Gov. Dye and present to us this assorted pre-merits procedural fruit basket.

 We begin with the proposition that the subject matter jurisdiction, a non-confessable jurisdiction, turns upon the well pleaded allegations of the complaint. In Re City of Ridgeland, 494 So. 2d 348, 350 (Miss. 1986); Brown v. Brown, 493 So. 2d 961, 963 (Miss. 1986); American Fidelity Fire Insurance Co. v. Athens Stove Works, Inc., 481 So. 2d 292, 296 (Miss. 1985). Our circuit courts are courts of general subject matter jurisdiction having authority to hear and adjudge all "matters civil" subject matter jurisdiction of which is not vested in some other court. Miss. Const. Art. 6, 156 (1890); Miss. Code Ann. 9-7-81 (1972); Hall v. Corbin, 478 So. 2d 253, 255 (Miss. 1985). Considering the nature of the primary claim, we find no exclusive vesting in any other court of jurisdiction to hear and decide claims that an officer of one department of government is exercising power constitutionally vested in another department. Considering the nature of the relief sought, that the Lieutenant Governor's exercise of certain powers in the Senate be declared unconstitutional and that he hereafter "be debarred from exercising the . . . [same]," we find the case akin to those historically within circuit court jurisdiction, to-wit: quo warranto proceedings. See Miss. Code Ann. 11-39-3 (1972). Subject matter jurisdiction has not been altered by the procedural demise of the quo warranto writ. *fn4 See Rules 2, 81 (c) and 82 (a), Miss. R. Civ. P. Without question, the allegations of the complaint were sufficient to confer upon the Circuit Court authority to proceed further. See Penrod Drilling Co. v. Bounds, 433 So. 2d 916, 924-25 (Miss. 1983) (concurring opinion).

 In their complaint Sens. Hale and Taylor allege that Lt. Gov. Dye is a member of the Executive Department of the government and that he is exercising legislative powers within the Senate, one house of the Legislative Department of government in violation of Miss. Const. Art. 1, 1 and 2 (1890). Sens. Hale and Taylor thus state a claim upon which relief can be granted, see Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So. 2d 499, 504-06

 (Miss. 1985), much the same as was done in the converse setting of Alexander v. State, ex rel. Allain, 441 So. 2d 1329 (Miss. 1983), wherein it was alleged that members of the Legislative Department of government were exercising powers at the core of and in the upper echelons of the Executive Department of government. It is a claim which, if proved and if not thwarted by defenses, would entitle Sens. Hale and Taylor to relief.

 B. The Senators' Standing To Sue

 The question of standing we resolve similarly against Lt. Gov. Dye, that also being a matter wherein we look only to the allegations of the complaint. Again, we are forbidden to assume any view of the correctness or ultimate merits of that complaint. Sens. Hale and Taylor allege that, by his exercise of powers in the legislative branch, Lt. Gov. Dye has deprived them of power and prerogatives lawfully theirs as Senators. The ongoing actions of Lt. Gov. Dye certainly have an adverse impact upon Sens. Hale and Taylor sufficient to confer upon them standing to sue. See Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1105-09 (Miss. 1987); see also Bowsher v. Synar, 478 U.S. ___, 106 S. Ct. 3181, 92 L.Ed.2d 583, 593 (1986). We refuse to relegate to the Attorney General either the exclusive authority to bring a suit such as this or the discretion whether and how that authority should be exercised. Cf. Frazier v. State of Mississippi, ___ So. 2d ___, ___ (Miss. Nos. 57,359 and 57,642, dec. March 4, 1987) (not yet reported).

 C. Justiciability

 Lt. Gov. Dye also attacks the Circuit Court's jurisdiction on the grounds that this case involves a political question and therefore a non-justiciable controversy. Specifically, Dye argues that courts have no authority to examine rules of procedure passed by a legislative body for the governance of its own deliberations, since each body is supreme within the powers conferred by the Constitution, citing 16 Am. Jur. 2d Constitutional Law 312, 31 and Witherspoon v. State Ex Rel. West, 138 Miss. 310, 103 So. 134 (1925).

 Sens. Hale and Taylor counter with the argument that their suit presents a claim of rights arising under the Mississippi Constitution of 1890 and as such can only be decided by the Judicial Department of this state's government. Alexander v. State Ex Rel. Allain, 441 So. 2d 1329 (Miss. 1983). See also, Ex Parte Alabama Senate, 466 So. 2d 914, 919-21 (Ala. 1985) (dissenting opinion).

 Without doubt we will as a general rule decline adjudication of controversies arising within the Legislative Department of government where those controversies relate solely to the internal affairs of that department. Barnes v. Ladner, 241 Miss. 606, 616, 131 So. 2d 458, 461 (1961). On the other hand, legislators nor the bodies in which they serve are above the law, and in those rare instances where a claim is presented that the actions of a legislative body contravene rights secured by the constitutions of the United States or of this state, it is the responsibility of the judiciary to act, notwithstanding that political considerations may motivate the assertion of the claims nor that our final judgment may have practical political consequences. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 940-44, 103 S. Ct. 2764, 77 L.Ed.2d 317, 338-40 (1983); Powell v. McCormack, 395 U.S. 486, 516-22, 547-49, 89 S. Ct. 1944, 23 L.Ed.2d 491, 514-17, 531-33 (1969). Where, as here, it is alleged that one arguably a member of the Executive Department of government is exercising powers properly belonging to the Legislative Department, we are of necessity called upon to decide whether the encroachment exists in fact and, if so, whether it contravenes the mandate of Sections 1 and 2 of our Constitution that the powers of government be separate. See Alexander v. State Ex Rel. Allain, 441 So. 2d 1329, 1333 (Miss. 1983). We have authority to adjudicate the claims tendered this day.

 Moreover, it is within our actual and judicial knowledge that the role, responsibility and authority of the office of the Lieutenant Governor have become matters of great public interest and no little controversy. There is a public need that the legal issues tendered be authoritatively resolved. Not only do we have the authority to decide today's questions; we have a public responsibility to do so. See Frazier et al. v. State of Mississippi, ___ So. 2d ___, ___ (Miss. Nos. 57,359 and 57,642, dec. March 4, 1987) (not yet reported).

 And with regard to the claim that today's case involves a political question in which the judiciary should not become enmeshed, it is much too late to reclaim our virginity. That great constitutional and legal questions may become topics of political and even partisan controversy should never be employed by this Court as an excuse to duck its responsibility to adjudicate the legal and constitutional rights of the parties. Suffice it to say that this Court has for years entertained and decided on the merits controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of the constitutional mandate for separation of powers. See, e.g.,

 Alexander v. State Ex Rel. Allain, 441 So. 2d 1329 (Miss. 1983); Clark v. State Ex Rel. Mississippi State Medical Association, 381 So. 2d 1046 (Miss. 1980); Edward Hines Yellow Pine Trustees v. State Ex Rel. Moore, 133 Miss. 334, 97 So. 552 (1923); Broadus v. State Ex Rel. Cowan, 132 Miss. 828, 96 So. 745 (1923); Jackson County v. Neville, 131 Miss. 599, 95 So. 626 (1923).

 D. Waiver and Estoppel/Exhaustion of Legislative Remedies

 Lt. Gov. Dye next argues that Sens. Hale and Taylor have waived the claims they assert. This argument proceeds from the facts that they voted for the rules they now challenge. The argument is that the two Plaintiffs have been members of the Senate since the beginning of the 1984 legislative session, and, at the beginning of that session, the challenged Senate rules were adopted without a dissenting vote. Because there is no record that the Senators opposed the adoption of the challenged rules, Lt. Gov. Dye says they have waived the right to challenge the constitutionality of such rules and are estopped from doing so as well. Dye relies on two quo warranto cases decided by this Court in asserting that the defenses of waiver and estoppel are available in an action such as this. See State Ex. Rel. Jordan v. Mayor & Commissioners of Greenwood, 157 Miss. 836, 129 So. 682 (1930); State Ex Rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764 (1957). Additionally, Dye argues that the Senators failed to exhaust their nonjudicial remedies before filing this lawsuit. Specifically, Dye argues that the Senators should have utilized Senate Rules 29 and 30 which allow for a suspension of the Senate rules and an adoption of temporary rules.

 Before considering these points, we must examine the facts. The Senate Journal of 1984 reflects that on the first day of the session, Senators Hale and Taylor were sworn in as members of the Mississippi State Senate. See Journal of the Senate of the State of Mississippi, p. 7 (1984). Immediately after the Senators were sworn in, Senate Resolution 1, consisting of proposed Senate Rules, was introduced. Included in these rules are those challenged in the instant case. The Journal reflects that there was a vote on these rules and they were all adopted. See Senate Journal at p. 24. Specific votes of Senators were not recorded. All that is reflected upon examination of the Journal is that the rules were adopted. There is no indication whether there were any "Nay" votes, and, if so, by whom cast.

 Little reflection is required to understand that Lt. Gov. Dye's argument must fail, for its acceptance would have the inescapable effect of establishing a new method of amending

 the Constitution - by waiver and estoppel. Alexander v. State Ex Rel. Allain, 441 So. 2d 1329 (Miss. 1983) stands as authority for rejection of Dye's argument. The processes attacked in Alexander had been going on for decades with the implied and express consent of numerous Governors. *fn5 Under Dye's theory, we would have had to hold in Alexander that prior Governors' acquiescence had operated to constitutionalize the substantial legislative encroachments upon executive power. Similarly, ...


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