Philip A. Gunn v. J. P. Hughes, Jr.

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-IA-00442-SCT

MISSISSIPPI STATE REPRESENTATIVE HOUSE
SPEAKER, PHILIP A. GUNN

v.

REPRESENTATIVE J. P. HUGHES, JR.

DATE OF JUDGMENT: 03/23/2016
TRIAL JUDGE: HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS: MICHAEL B. WALLACE
REBECCA L. HAWKINS
CHARLES EDWARD COWAN
SIDNEY RAY HILL, III
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL B. WALLACE
REBECCA L. HAWKINS
CHARLES EDWARD COWAN
ATTORNEY FOR APPELLEE: SIDNEY RAY HILL, III
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 02/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1. This case tests the limits of our judicial power to review the manner in which the

Legislature carries out its procedural constitutional responsibilities. Article 4, Section 59 of

the Mississippi Constitution provides that in the Mississippi Legislature “every bill shall be

read in full immediately before the vote on its final passage upon the demand of any

member.” When J. P. Hughes Jr., a member of the Legislature, requested that certain bills

be read as required by that article, Speaker Phlip Gunn had the bills read by a machine at a
speed that Rep. Hughes claims was incomprehensible and therefore a constitutional violation,

leading him to file suit to stop the practice. We granted interlocutory appeal and now hold

that we are without constitutional authority to resolve this dispute. We remand this case to

the circuit court with instructions to dismiss the petition.

FACTS AND PROCEDURAL HISTORY

¶2. On March 23, 2016, Rep. Hughes filed a petition against Speaker Gunn in the circuit

court, seeking a temporary restraining order, a preliminary injunction, and, alternatively, a

writ of mandamus. Rep. Hughes’s petition asked the circuit judge to order the Speaker’s

compliance—by injunction or writ of mandamus—with Article 4, Section 59 of the

Mississippi Constitution, which states “every bill shall be read in full immediately before the

vote on its final passage upon the demand of any member.” In his petition, Rep. Hughes

acknowledges that Speaker Gunn had recognized members’ requests to have bills read under

Article 4, Section 59, but in doing so, he had

only partially obliged that request by having the words of the bills read by an
electronic device (set on the highest speed adjustment, #10) such that the same
is being read artificially and so quickly that no human ear nor mind can
comprehend the words of the bills.

¶3. After finding that the circuit court had jurisdiction to resolve the dispute, a Hinds

County circuit judge granted a temporary restraining order which stated that

the Respondent shall, consistent with Article 59 of the Mississippi
Constitution, read or cause to be read all bills presented to the House of
Representatives in a normal speed and audible level comprehensive lever [sic]
so that each member of the House of Representatives has an opportunity to
hear and understand each word of each such properly requested reading.

2
¶4. The order also set a hearing for March 28, 2016, but the next day, the Speaker moved

to dissolve the temporary restraining order, arguing that he had complied with Article 5,

Section 59; that Rep. Hughes had failed to satisfy several requirements to obtain a temporary

restraining order ex parte; and that judicial intervention into the legislative matter was

inappropriate.

¶5. That same day, the Speaker filed in this Court a petition for interlocutory appeal, or

for writ of mandamus or prohibition from the circuit court’s temporary restraining order,

arguing that Rep. Hughes had failed to satisfy the requirements to obtain an ex parte

temporary restraining order, and that this Court should order the circuit court “to restrain the

exercise of its supposed jurisdiction in contravention of the separation of powers doctrine

embodied in Miss. Const. Art. 1 §§ 1-2 (1890).”

¶6. On March 24, 2016, we dissolved the temporary restraining order and stayed all

proceedings in the circuit court, and we ordered Rep. Hughes to respond to the Speaker’s

petition for interlocutory appeal, which he did. We then granted interlocutory appeal to

“address (1) whether the judiciary has jurisdiction over this dispute in light of Sections 1 and

2, Article I of the Mississippi Constitution, and/or (2) whether this Court should refrain from

exercising its jurisdiction over the issues raised in this matter.”

ANALYSIS

¶7. The Mississippi Constitution’s first section states that “[t]he powers of the

government of the State of Mississippi shall be divided into three distinct departments, and

3
each of them confided to a separate magistracy, to-wit: those which are legislative to one,

those which are judicial to another, and those which are executive to another.”1 Its second

section states that “[n]o person or collection of persons, being one or belonging to one of

these departments, shall exercise any power properly belonging to either of the others.”2 The

jurisdictional question presented is whether judicial intervention in this dispute would be an

encroachment on a power conferred upon the Legislature in violation of Article 1, Section

2.

¶8. Rep. Hughes claims the Speaker has failed to comply with the requirements of Article

4, Section 59 of the Mississippi Constitution. He asks the judiciary to order the Speaker’s

compliance through injunctive relief. But we hold that this Court lacks constitutional

authority to interfere in the procedural workings of the Legislature, even when those

procedures are constitutionally mandated. This limitation on our power has been recognized

by this Court for more than a century.3

¶9. In Hunt v. Wright, we recognized that our power to review statutes for constitutional

infirmity “commences after the termination of legislative action.”4 In doing so, the Hunt

Court made clear that the judiciary is “not an overseer of the legislature during its labors, but

1
Miss. Const. art. 1, § 1.
2
Miss. Const. art. 1, § 2.
3
Ex parte Wren, 63 Miss. 512, 533–34 (1886); Hunt v. Wright, 70 Miss. 298, 11
So. 608, 610 (1892).
4
Hunt, 11 So. at 610.

4
[this Court] takes its completed work, and tries it by the constitution, starting with the

conclusive and irrebuttable presumption that as to all the requirements of that instrument they

who swore to observe it did it.”5

¶10. While this case concerns a request for injunctive relief to order the Speaker to carry

out a constitutional procedural requirement, not a request to invalidate a statute for some

constitutional procedural defect in its enactment, Hunt recognizes that the Legislature

possesses exclusive power over its own procedures.

¶11. The Hunt decision relied on this Court’s opinion in Ex parte Wren—decided before

the adoption of our present Constitution—which unequivocally held that the judiciary lacks

any constitutional authority to interfere in the Legislature’s internal procedure:

The legislature is one of the three co-ordinate and co-equal departments into
which the powers of government are divided by the constitution, possessing
all legislative power and not subject to supervision and control during its
performance of its constitutional functions, nor to judicial revision afterward
of the manner in which it obeyed the constitution its members are sworn to
support.6

¶12. But in Tuck v. Blackmon—a more recent opinion that has muddied the constitutional

water surrounding Article 4, Section 59—several Mississippi senators sought injunctive

relief to enforce that provision.7 Lieutenant Governor Amy Tuck, acting in her capacity as

President of the Senate, had determined that Article 4, Section 59’s requirement that bills be

5
Id.
6
Ex parte Wren, 63 Miss. at 533–34 (emphasis added).
7
Tuck v. Blackmon, 798 So. 2d 402, 404 (Miss. 2001).

5
read upon request did not apply to conference committee reports.8 The senators who had

requested a reading sought judicial review and injunctive relief on the question of whether

a conference committee report constituted a bill for purposes of Article 4, Section 59.9

¶13. After a chancellor granted the senators an injunction, Lt. Gov. Tuck appealed, and this

Court failed to apply the strict separation of powers required by the Mississippi Constitution,

as recognized in Hunt and Wren.10 The Tuck Court stated:

With respect to the separate powers of each branch of government, the courts
will generally refrain from interfering with the Legislature’s interpretation and
application of its procedural rules and with its internal operations.11

By saying we “generally refrain from interfering,” this Court committed error born of two

sources.

¶14. First, the Tuck Court purported to apply this Court’s decision in Dye v. State ex rel.

Hale, which considered a constitutional challenge on separation-of-powers grounds by

several Mississippi senators to Senate rules granting the Lieutenant Governor—an executive

officer—control over legislative matters.12 But Dye addressed a different issue: this Court’s

authority to enforce the Mississippi Constitution’s substantive separation of powers.

8
Id.
9
Id. at 405.
10
Id.
11
Id. (emphasis added).
12
Dye v. State ex rel. Hale, 507 So. 2d 332, 334–35 (Miss. 1987).

6
¶15. Second, the Tuck Court characterized the constitutional limits on this Court’s power

as a matter of discretion left to the whims of this Court. In other words, this Court found

that, although it had jurisdiction to review the constitutionality of the Legislature’s internal

actions, it should not—as a matter of judicial restraint—exercise that jurisdiction unless the

challenged conduct was manifestly unconstitutional.13 The Court described this as the “well

precedented and respected political question doctrine itself grounded in prudent judicial

restraint.”14

¶16. But while Tuck correctly identified that the political question doctrine was at issue,

it incorrectly described that doctrine as one of discretionary judicial restraint. The political

question doctrine embodies the constitutional separation of powers between coequal branches

of government,15 setting the limit of the judiciary’s constitutional authority to resolve

disputes when there arises either “‘a textually demonstrable constitutional commitment of

the issue to a coordinate branch political department; or a lack of judicially discoverable and

manageable standards for resolving it.’”16 The Tuck Court’s holding to the contrary was

erroneous. At least to the extent that the political question doctrine turns on “‘a textually

demonstrable constitutional commitment of the issue to a coordinate branch political

13
Tuck, 798 So. 2d at 406.
14
Id. at 407.
15
Powell v. McCormick, 395 U.S. 486, 512, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).
16
Nixon v. U.S., 506 U.S. 224, 228, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (quoting
Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)).

7
department” it cannot be considered a matter of discretion given the Mississippi

Constitution’s absolute separation of powers.17

¶17. In sum, when the Tuck Court employed language suggesting the judiciary would

refrain from exercising its power to interfere in legislative procedure, it necessarily implied

it had that power in the first place. This ran afoul of Wren, Hunt, and the Mississippi

Constitution’s absolute separation of powers. So to be clear, to the extent Tuck held that the

judiciary possesses some power to interfere in the Legislature’s internal procedure, we

overrule it today.

¶18. By requesting the courts to force Speaker Gunn to read bills in a particular manner,

Rep. Hughes seeks to involve the judiciary in legislative procedural matters. The text of our

state Constitution that imposes upon the Legislature the obligation to read bills upon a

member’s request, necessarily commits upon the Legislature the obligation to determine how

17
In this sense, this case is on all fours with the United States Supreme Court’s
decision in Nixon v. United States. In Nixon, the United States House of Representatives
brought articles of impeachment against Walter L. Nixon, Jr.—Chief Judge of the United
States District Court for the Southern District of Mississippi—after Judge Nixon had been
convicted of making false statements to a federal grand jury. When the House presented the
articles to the United States Senate, the Senate invoked a procedural rule by which a
committee of Senators reviewed the evidence supporting impeachment, and then the whole
Senate reviewed a report on that evidence before voting to remove Nixon from office. Nixon
sought judicial review, arguing that because the United States Constitution states that the
Senate shall try all cases of impeachment, the Senate could not adopt a rule delegating that
duty to a committee. Rather, he argued, the entire Senate must hear the evidence supporting
impeachment. When the case reached the United States Supreme Court, that court
considered whether Nixon’s constitutional claim implicated the political question doctrine.
The Supreme Court concluded that the power to try impeachments had been committed to
the Senate, not the judiciary. Nixon, 506 U.S. at 226–237.

8
that requirement will be carried out. So this case must be dismissed, not as a matter of

judicial discretion, but because we are without constitutional authority to adjudicate it. The

constitutional authority, and duty, to decide the matter lies squarely within the legislative

branch of our government.

CONCLUSION

¶19. Because Rep. Hughes’s petition raises an issue the judiciary lacks constitutional

authority to adjudicate, we remand this case to the circuit court with instructions to dismiss

it.

¶20. REVERSED AND REMANDED.

WALLER, C.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.
RANDOLPH, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION JOINED IN PART BY BEAM, J. KING, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, J. CHAMBERLIN, J., NOT
PARTICIPATING.

RANDOLPH, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶21. My esteemed colleagues engage in verbal sparring on an issue which does not demand

our attention. “[I]t is well-settled that ‘a constitutional question will be passed on where the

issues involved in a particular case are such that the case may be decided on other grounds.’”

Miss. Power Co., Inc. v. Miss. Pub. Serv. Comm’n, 168 So. 3d 905, 910 (Miss. 2015)

(quoting Warner–Lambert Co. v. Potts, 909 So. 2d 1092, 1093 (Miss. 2005)). Without

delving into an extended study and resulting discourse concerning the Constitution and the

9
separation of powers, can we not agree that this Court has jurisdiction to review a circuit

court’s order?

¶22. Rep. J. P. Hughes filed a petition in Hinds County Circuit Court seeking a temporary

restraining order (TRO) without ever noticing Speaker Philip Gunn. The grant of a TRO

without notice is governed by Rule 65(b) of the Mississippi Rules of Civil Procedure.

A temporary restraining order may be granted, without notice to the adverse
party or his attorney if (1) it clearly appears from specific facts shown by
affidavit or by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before the adverse party or his
attorney can be heard in opposition, and (2) the applicant’s attorney certifies
to the court in writing the efforts, if any, which have been made to give the
notice and reasons supporting his claim that notice should not be required.
Every temporary restraining order granted without notice shall be endorsed
with the date and hour of issuance; shall be filed forthwith in the clerk’s office
and entered of record; shall define the injury and state why it is irreparable and
why the order was granted without notice; and shall expire by its terms within
such time after entry, not to exceed ten days . . . .

M.R.C.P. 65(b).

¶23. While Rep. Hughes’s petition is notarized and sworn to, he filed neither a complaint

nor an affidavit. Although he alleges “irreparable harm,” he fails to specify any physical or

psychological injury that he has suffered—or would suffer—or how the undescribed injury

would be irreparable. He does not aver that he or any other member of the House was unable

to read, did not have access to the full text of any bill, was uninformed regarding the text of

any bill, or that he was unable to understand the text, substance, or import of any bill.18 In

18
Although Rep. Hughes alleges that the bills were being read at an “unintelligible
speed,” he does not dispute the affidavit of the Clerk of the House of Representatives, who

10
short, Hughes failed to show the urgency and necessity which precipitates a need for a TRO.

Equally fatal to Rep. Hughes’s petition is his failure to certify his efforts to provide notice

to Speaker Gunn and the reasons why notice should not be required. The petition is totally

devoid of any efforts to provide notice and/or reasons why notice should not be required.

¶24. The TRO issued is similarly fatally defective. The order fails to decree (1) why the

undescribed, undefined “injury” is irreparable and (2) why the trial court granted the order

without notice.

¶25. The TRO was dissolved by an en banc order of this Court, which also stayed all

proceedings in the circuit court until further ordered by this Court. Due to the procedural

deficiencies of both the petition and the TRO, the TRO issued in this case is void. Speaker

Gunn was wrongfully restrained. Thus, I agree with remanding this matter to the circuit

court. However, I would include an instruction to the circuit judge to conduct a hearing to

determine the reasonable costs, expenses, and attorney’s fees incurred by the Speaker, as

swears that

[a]t the beginning of the term every Member of the House, by taxpayer
expense, is offered either a laptop computer or an iPad for purposes of access
to the Internet. This technology is offered to give legislators a platform to
research legislation, to read bills, and to do official work of the House. Every
Member of the House accepted and received either a laptop computer or an
iPad, except for the Speaker and Speaker Pro Tempore. The current text of
every bill is available online at all times. All Members therefore have
immediate access to the text of every bill as it is being read in the House. In
addition to a laptop or iPad, legislators are offered hard copies of bills in
committee and can obtain a hard copy of a bill, by request, on the House floor.

11
provided by Rule 65(c).19 The citizens of this State should not be saddled with the costs of

this litigation.

BEAM, J., JOINS THIS OPINION IN PART.

KING, JUSTICE, DISSENTING:

¶26. Because I believe that an appellate decision in this case is premature, and

consequently should remand the case to the circuit court to be properly developed, I

respectfully dissent.

¶27. I would allow this matter to proceed in the circuit court, where a full record could be

developed. See M.R.A.P. 10(a) (the content of the appellate record “shall consist of

designated papers and exhibits filed in the trial court, the transcript of proceedings, if any,

and . . . a certified copy of the docket entries . . .”); Hardy v. Brock, 826 So. 2d 71, 76 (Miss.

2002) (“Mississippi appellate courts may not consider information that is outside the

record.”).

19
See M.R.C.P. 65(c) (requiring a TRO applicant to post security “in such sum as the
court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees
as may be incurred or suffered by any party who is found to have been wrongfully enjoined
or restrained”).

12
¶28. The majority decides this case without proper development in the circuit court.20 In

order for the majority to find insufficient grounds to justify judicial intervention, it must

determine whether the actions at issue were manifestly unconstitutional. Such a

determination depends partially on the facts of the case, which were completely undeveloped

in the circuit court. For example, Rep. Hughes has not had the opportunity to provide

evidence that members of the House may be uninformed as to the text of the bills, or that the

machine’s speed caused confusion or misunderstanding of the bills. Pleadings must only

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Miss. R. Civ. P. 8(a)(1). At the pleading stage, a party is required only to place the

defendant or respondent “on reasonable notice of the claims against” him and “to

demonstrate that [the plaintiff or petitioner] has alleged a recognized cause of action upon

which, under some set of facts, he might prevail.” Children’s Med. Grp., P.A. v. Phillips,

940 So. 2d 931, 934 (Miss. 2006). Thus, Rep. Hughes was not required to allege or prove

specific facts. It was thus not necessary at this juncture that Rep. Hughes conduct extensive

investigations and discovery in order to determine whether or how many House of

Representative members encountered problems due to the alleged incoherent reading of the

20
To be clear, I agree, as evinced by the Corrected En Banc Order in this case filed
on March 24, 2016, that the pleadings were insufficient under Rule 65 to grant a Temporary
Restraining Order (TRO). The pleadings failed to meet the heightened pleading standards
required by Rule 65 to obtain a TRO. But once the stages of the litigation go beyond Rule
65 and a TRO, what we are dealing with are general pleading issues, in other words, simple
notice pleading. Thus, I clarify that we are no longer examining the pleadings under Rule
65, but examining them as sufficient under notice pleading standards.

13
bills. He needed only to make allegations sufficient to put Speaker Gunn on reasonable

notice of his claims, which he has done. As such, the record should be developed in the

circuit court, so that Rep. Hughes may be afforded the opportunity to gather evidence that

the machine reading the bills resulted in problems for any representatives and/or was

unconstitutional for any number of reasons, and for Speaker Gunn to be afforded the

opportunity to gather evidence that it did and was not.

¶29. Moreover, Rep. Hughes clearly alleged critical harm21 in his petition, stating in that

petition that “[b]y failing to follow the letter and spirit of the Mississippi Constitution and

having the bills read aloud for the body in a manner so they can be understood, there is

irreparable harm which has occurred and will continue to occur, all as a direct and proximate

result of the actions and inactions of” Speaker Gunn. But such was impossible for him to

prove because this Court denied him the opportunity to develop his case in the circuit court.

¶30. Moreover, the circuit court was not only prevented from developing the facts in this

case, it was not allowed to issue any sort of final judgment applying the law from which we

can find error. It is the role of the judiciary to apply the law to the facts of a particular case;

this Court does not issue advisory opinions and in cases such as this, the trial court is the trier

of fact and the original court assigned to apply the law to the facts. See Ramsey v. Auburn

Univ., 191 So. 3d 102, 112 (Miss. 2016) (where circuit court did not address certain issues

21
Under Tuck, the court may examine legislative action where it exercises its
constitutional responsibilities in a manifestly wrong manner that does critical harm to the
legislative process. Maj. Op. ¶15.

14
and the appellant essentially asked this Court to preemptively resolve those issues, this Court

noted that it does not issue advisory opinions).

¶31. Because this Court decides these issues preemptively and prematurely, without

affording the parties the opportunity to develop the facts, and without allowing the circuit

court to apply the law to those developed facts, I respectfully dissent. I would remand the

case for further proceedings in the circuit court.

KITCHENS, J., JOINS THIS OPINION.

15