ON PETITION FOR REHEARING
HAWKINS, PRESIDING JUSTICE, DISSENTING:
This case was decided August 10, 1988, on a four-four tie vote, Justice Zuccaro not participating. Justices Robertson, R. N. Lee, Prather and Anderson found that the proposed amendment to Section 112 of the Constitution did not violate Section 273 of the Constitution. Justices Dan M. Lee, Sullivan, J. Ruble Griffin and I were of the view that the amendment to Section 112 did violate Section 273.
A petition for rehearing was filed August 24, a response
by appellees October 3, and reply brief of appellants October 10, 1988.
On August 24, 1988, there was also filed a motion for two justices on this Court to certify to the Governor, under the provisions of Miss. Code Ann. 9-1-13 (3) the disqualification of Justice Zuccaro in order that a Justice to participate in this case could be appointed. This motion was overruled on November 2, 1988.
The petition for rehearing was never presented to an en banc conference of the court during Justice Griffin's lifetime when he would have been able to participate. *fn1 Justice Griffin was active on the Court and appeared at en banc conferences through November, 1988. This petition could have been, and should have been presented during this time. I recall Justice Griffin had some very strong views on this matter.
The opinion now goes out on a four-three vote, which convinces me that a mistake was made in not sustaining the August 24, 1988, motion of the appellants. Justice Zuccaro has been appointed to fill the interim period pending the Governor appointing a replacement for Justice Griffin. Justice Pittman became a member of this Court on January 3, 1989. Because he was Attorney General while the suit was filed and pending, regrettably he cannot participate, either. Thus, only seven Justices are participating.
I am aware that this Court has an internal operating rule that a Justice who did not participate in the original decision does not participate in a petition for rehearing. The basic reason for this rule is that the new Justice will not be familiar with the facts. On a case involving a pure question of law, however, and in this case grave Constitutional law, in my view any duly-constituted Justice is fully qualified and should participate in a petition for rehearing.
At the very least this case should be postponed until a replacement Justice has been appointed to succeed Justice Zuccaro, and it is most unfortunate for this State that a case of this magnitude and importance does not have the full attention of a ...