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IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.___________
IN RE: CHARLES HOOKER, DAVID GATLIN, NATHAN KERN, AND ANTHONY MCCRAY PETITIONERS
PETITION OF CHARLES HOOKER, DAVID GATLIN, NATHAN KERN, AND ANTHONY MCCRAY FOR WRIT OF PROHIBITION AND/OR MANDAMUS, OR,
ALTERNATIVELY, FOR PERMISSION TO APPEAL INTERLOCUTORY ORDERS
IMMEDIATE STAY REQUESTED EXPEDITED EMERGENCY CONSIDERATION REQUESTED
HEARING AT WHICH YOUR PETITIONERS MAY BE UNLAWFULLY IMPRISONED IS NOW SET FOR FEBRUARY 3
ON PETITION FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI
HONORABLE TOMIE T. GREEN, SENIOR CIRCUIT JUDGE PRESIDING
One of the core functions of the writ of prohibition is "to prevent courts or tribunals from
exercising jurisdiction with which they are not vested." State v. Maples, 402 So. 2d 350, 351
(Miss. 1981). The Circuit Court has erroneously asserted the judicial power to review
gubernatorial pardons granted under the exclusive authority given by Section 124 of the State
Constitution to the chief executive officer of the State. Petitioners Charles Hooker, David
Gatlin, Nathan Kern, and Anthony McCray petition this Court under Miss. R. App. P. 21 for a
Writ of Prohibition and/or Mandamus directed to the Circuit Court. In the alternative, Petitioners
seek permission to appeal under Miss. R. App. P. 5(a) from the interlocutory orders of the Circuit
Court. In all events Petitioners request an immediate stay in the Circuit Court and expedited
emergency consideration of their Petition. An evidentiary hearing is set for Friday, February 3,
2012, at 1:00 p.m., at which your Petitioners may be unlawfully imprisoned as a result of the
Circuit Court’s unequivocal assertion of jurisdiction over, and review of, the unconditional
pardons issued by Governor Barbour to Petitioners and others.
In support thereof, your Petitioners would respectfully show the following:
A. STATEMENT OF THE FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUES PRESENTED BY THE APPLICATION AND WHY IT WAS DENIED BY THE CIRCUIT COURT
1. Petitioners are former felons convicted under the laws of the State of Mississippi, each of
whom was housed on the grounds of the Governor’s Mansion and working as Mansion trusties
when then Governor Haley Barbour formally pardoned each Petitioner on January 6, 2012. True
and correct copies of their pardons are attached as Collective Exhibit A. The State of Mississippi
released Petitioners from its custody on January 8, 2012. Governor Barbour’s term of office
ended at 12 noon on January 10, 2012, when Governor Bryant took his oath of office.
2. On or about January 11, 2012, the State Attorney General filed suit in Hinds County
Circuit Court seeking to nullify Petitioners’ pardons and, by implication, to return Petitioners to
the custody of the Mississippi Department of Corrections ("MDOC") and to prevent the release
of five other convicted felons whom Governor Barbour pardoned but who remain incarcerated
because of the Circuit Court’s erroneous restraining orders. The case is styled "Jim Hood,
Attorney General for the State of Mississippi, ex rel. The State of Mississippi v. Christopher
Epps, in his Official Capacity as Commissioner of the Mississippi Department of Corrections;
Nathan Kern; David Gatlin; Charles Hooker; Anthony McCray; Joseph Ozment; Katherine
Robertson; Kirby Glenn Tate; Aaron Brown; Joshua L. Howard; Azikiwe Kambule; and John or
Jane Does 1-200" and bears Cause No. 251-12-00033. A true and correct copy of the Attorney
General’s most recent Complaint filed in the Circuit Court is attached as Exhibit B.
3. The theory of the Attorney General’s suit is that the pardons are invalid due to an alleged
failure to comply with the portion of Section 124 of the Constitution which provides "in cases of
felony, after conviction no pardon shall be granted until the applicant therefor shall have
2
a.
published for thirty days, in some newspaper in the county where the crime was committed and
in case there be no newspaper published in said county, then in an adjoining county, his petition
for pardon, setting forth therein the reasons why such pardon should be granted." See Miss.
Const. § 124 (1890).
4. Although the case had been randomly assigned to Judge Weill, Judge Green reassigned
the case to herself, on the ground that Judge Weill was in trial. See Order of Re-Assignment
(Jan. 11, 2012); attached as Exhibit C.
5. On January 11, 2012, without notice to Petitioners, the Attorney General appeared before
Judge Green and requested a Temporary Restraining Order.’ A true and correct copy of the
hearing transcript is attached as Exhibit D.
6. The hearing was entirely exparte, as the only attorneys who appeared were the Attorney
General and three attorneys who are employed and supervised by the Attorney General. For
example, Special Assistant Attorney General David K. Scott represented Honorable Christopher
Epps, Commissioner of the Mississippi Department of Corrections ("MDOC"), who is the lead
"Defendant." During the hearing Mr. Scott (who, when asked by the Court if he had had an
opportunity to review the Attorney General’s Petition, responded merely "I’ve briefly reviewed
it.", Transcript, January 11 hearing, page 5 lines 6-8) was unable to identify even one legal
argument to be made on behalf of his client and in opposition to his employer, including, for
example, that the State knew where several of Petitioners were at the time suit was filed but had
Per the Order that was issued, Petitioners were given no notice because "their locations are unknown at this time." The Attorney General, however, did not represent to the Court that any effort had been made to contact them. To the contrary, he explained exactly how he would contact Petitioners - after the hearing. Transcript, January 11 hearing p. 12 lines 11-18. After the hearing the Attorney General was in fact able to contact Petitioners to serve the TRO. Petitioners allege that it was not at all impractical for the Attorney General to give notice to Petitioners, and that there was no proper excuse for failing to do so, nor for the Circuit Court’s failure to insist upon notice.
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not sought to serve them with a summons or complaint; that the Office of the Governor which
had issued the pardons, which are official acts, had not been made a party; that certain inmates
who received pardons were still in the custody of MDOC and had not been served; that it is
hornbook law that the official acts of a public official under Mississippi law are presumptively
valid ;2 and that MDOC in the past had published notices for trusties who were working at the
Mansion.3 In fairness to Mr. Scott, he may not have known about this last point because he may
not have been legal counsel to MDOC when MDOC published those notices in the past.
7. Mr. Scott was unable even to speak up to tell the Court the whole truth, of which he had
personal knowledge, on a key point of his employer’s argument. The Attorney General began
his presentation to the Court by blaming then Governor Barbour for the alleged lack of notice.
Transcript, January 11 hearing, page 6, lines 7-11 (Attorney General: "And we take the position
that it was the Governor’s duty before he signed those pardons to determine that the publications
were done.")
8. Yet, as Mr. Scott personally knew, the Attorney General had in fact undertaken the
express responsibility to publish notice on behalf of Petitioners. Mr. Scott had actual knowledge
of this fact because it was he, personally, as Special Assistant Attorney General, who voluntarily
undertook that responsibility on behalf of those inmates receiving pardons who had been serving
as trusties at the Governor’s Mansion while in the custody of the MDOC. A full account of Mr.
2 For example, in Raper v. State, 317 So. 2d 709, 713 (Miss. 1975), this Court collects extensive authorities on the subject and explains that this "rule is firmly fixed as a part of our case history...
The sum total of Mr. Scott’s advocacy amounted to this:
MR. SCOTT: Your Honor, the Commissioner doesn’t contest the petition and relies on the wise judgment of the Court in making a ruling on that.
Hearing Transcript, January 11 hearing, p. 32 lines 9-12.
El
Scott’s undertaking, including text messages to and from Mr. Scott evidencing same, is set forth,
infra, at pp. 25-30.
9. At the January 11, 2012 hearing, the Attorney General did not present any proof that
Petitioners’ pardons were invalid, even under his own erroneous legal theory that the 30-day
notice provision is a substantive rather than procedural requirement, a theory that departs from
125 years of State Supreme Court precedents to the contrary. See Petition, infra, at pp. 21-23.
Instead, the Attorney General simply stated that he did not possess information sufficient to
satisfy himself that all of the pardons were valid under his legal theory, thus improperly forcing
Your Petitioners to carry the burden of negating his allegations about the official pardons of the
Governor. Transcript, January 11 hearing, p. 13 lines 23-28 (Attorney General: "what we have
already found in those files is a lot of them don’t have any information about any publication");
page 7 line 9 through p. 11 line 8; p. 11 line 27 through p. 12 line 2. See especially id. p. 20 line
20 through p. 21 line 5 (admitting that at least as to some pardon recipients, "in all fairness I
think they have a valid pardon until we prove otherwise. And so I guess what’s going to have to
happen is our office is going to have to run all these publications and put on and try to prove a
negative, you know that nothing has occurred").
10. The Attorney General expressly singled Petitioners out, telling the Court: "let’s bring
these in and see if they’ve got some proof that they actually met the publication requirement."
"Mr. Scott’s silence on this point was maintained even when the Court asked him directly "When were you notified that the publications had been met so as to release anyone?" Mr. Scott’s response referenced "discussion between the Department [his client, the Department of Corrections] and the Governor’s office about the publication at that time [more than thirty days prior to the pardons], and the Department was instructed to go ahead and publish notification on the individuals [i.e., Your Petitioners] who were still in custody." Transcript, January 11 hearing p. 21 line 18 through p. 22 line 5. Considering that by "the Department was instructed" Mr. Scott apparently meant "I personally agreed," this can hardly be regarded as an illustration of candor to the Court. See also id. p. 24 lines 14-23 (Mr. Scott represents to the Court that MDOC relied on the Governor to ensure timely publication).
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What is truly remarkable about this statement is that the Attorney General had proof of when
their legal notices first began to run because David K. Scott, Special Assistant Attorney General,
had accepted the responsibility to publish for Petitioners. Scott had directed that MDOC publish
their notices just as MDOC had done for mansion trusties in the past, and Scott was addressed on
documents showing that publication had happened under Scott’s very direction.
11. The Court entered the TRO which, on information and belief, had been pre-prepared by
the Attorney General, with, as the Court noted on the record, "some modifications" of the
Court’s own. 5 Hearing Transcript, January 11 hearing p. 33 lines 18-19. A true and correct
copy of the TRO is attached as Exhibit E.
12. Although styled a "restraining" order, the TRO is a mandatory injunction, directing that
Petitioners (a) "shall obtain and provide plaintiff and the Court documented and sufficient proof’
of compliance with Section 124, as interpreted by the Attorney General; (b) appear for a
preliminary injunction hearing on January 23; and (c) contact MDOC "every 24 hours to provide
accurate information on their exact locations and any plans to travel beyond their homes." This
was another "modification" by the Court; the Attorney General’s draft order read "travel beyond
their home counties."
13. At the January 23 hearing, the Circuit Court denied Petitioners’ motion to transfer the
case to Judge Weill, or, in the alternative, to dismiss. A true and correct copy of the order is
attached as Exhibit F. 6 The Circuit Court also denied Your Petitioner’s motion to disqualify Mr.
The Court-supplied "modifications" included adding, to a sentence that recited that the Governor had pardoned individuals convicted of crimes, a handwritten list: "i.e. murder, manslaughter, rape, armed robbery, aggravated assault, sexual assault, kidnapping, burglary, domestic violence, etc."
6 The order denying the motion to dismiss, apparently prepared by the Circuit Court, made the following observation: "It is well-settled that the Governor may, by proper pardon, extend mercy or forgiveness to murders, rapists, child molesters, or any other persons convicted in the courts."
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Scott from acting as an attorney for MDOC in the suit. A true and correct copy of the order is
attached as Exhibit G.
14. The Circuit Court erroneously extended the TRO to February 3�7 The case is currently
set for hearing on the Attorney General’s request for a preliminary injunction, on February 3 at
1:00 p.m. Your Petitioners and others have exerted their best efforts to secure a transcript of the
January 23 hearing, but have been advised by the Court that "The earliest the transcript can be
available is by the end of the day on Monday [January 30] after same has been provided to the
court for review." A true and correct copy of the email to this effect is attached as Exhibit H. A
video of the January 23 hearing can be accessed on the internet at
http://www.youtube.com/watch?v= SDY ED 1 2u8.
15. The Circuit Court told Petitioners that "your liberty is at risk," making it clear that should
Petitioners fail to discharge the burden that it has improperly placed on them, it will immediately
order them returned to the custody of the MDOC. Employees of the Circuit Court were at the
ready with manacles and fetters in hand at the January 23 hearing prepared to take Petitioners
into the custody of MDOC.
16. The State has failed to allege facts showing that review of the Governor’s pardons is
permissible, and the Circuit Court has no jurisdiction in the premises.
B. STATEMENT OF THE ISSUES PRESENTED AND OF THE RELIEF SOUGHT
I. Whether the Circuit Court has jurisdiction to deprive Petitioners of their liberty or property on the theory that Section 124’s 30-day notice provision was not met, when the notice provision is procedural, not substantive, and thus, this aspect of the Governor’s power of clemency is beyond judicial review.
Petitioners appeared specially, preserving all objections, including objections to jurisdiction.
VA
II. Whether, even if the Circuit Court has jurisdiction, the State of Mississippi is estopped to deprive Petitioners of their liberty or property on the ground that timely notice was not published, given that the State of Mississippi freely and voluntarily undertook to publish timely notice, and represented to Petitioners that it would do so, thus inducing reasonable reliance on the part of Petitioners?
III. Whether, even if the Circuit Court has jurisdiction, its announced intention to consider nothing but the date that notice was published deprives Petitioners of their due process rights to have their legal and equitable defenses, such as promissory estoppel, heard and considered and thereby constitutes irreparable harm.
C. STATEMENT OF THE REASONS WHY THE WRIT SHOULD ISSUE
1. Whether The Recipient Of A Gubernatorial Pardon Has Published Notice Of The Application 30 Days Before The Governor Grants A Pardon Is A Procedural Component Of The Governor’s Exercise Of His Exclusive Constitutional Authority And Is Not Reviewable Once The Governor Grants A Pardon.
The "chief executive power of this State shall be vested in the Governor...." Miss.
Const. § 116 (1890). The chief executive power includes the express constitutional authority to
grant reprieves and pardons. Miss. Const. § 124 (1890), provides in its entirety:
In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with the consent of the Senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
Id. As can be seen, there are certain substantive limitations on the constitutional pardon power
granted to the Governor.
The Governor does not have the authority to grant a pardon in cases of treason or
impeachment or in any criminal or penal case before there has been a conviction.
The Governor’s authority to grant a reprieve or to remit a forfeiture is reviewable in the
sense that another branch of state government may question the act of the Governor in two
specific instances. First, the Governor has the power to grant reprieves in cases of treason
subject to the consent of the Senate. Second, the Governor also has the power to remit
forfeitures in criminal or penal cases - except for cases of treason or impeachment - subject to the
consent of the Senate. Thus, it is only the Senate, a chamber of the Legislative Department, that
has the authority to review the acts of the Governor, and the authority of the Senate is limited to
certain special cases involving reprieves for treason and the remission of forfeitures in criminal
or penal cases. These are the only acts of the Governor authorized by Section 124 that are
reviewable by another Department of State Government.
Section 124 therefore does not provide for the express review by another branch of state
government of any other actions taken by the Governor related to the decisions to grant a
reprieve, to remit a fine or forfeiture, or to pardon. If the framers of the Mississippi Constitution
had wanted to provide for the review by another branch of state government of the Governor’s
exercise of the authority to pardon, they could have expressly placed this review power in
Section 124. See W. Etheridge, MODERNIZING MISSISSIPPI’S CONSTITUTION 53-54 (1950) (The
constitution does "grant to the Governor the exclusive pardoning power, the power to grant
reprieves, and by implication the power of commutation.")
This is wholly unremarkable because the gubernatorial pardon power - which does not
extend to cases of treason, impeachment, or cases in which there is no conviction -. is an express
constitutional check and balance on the "judicial power" of the State’s trial and appellate courts
found in Section 144. It would defy common sense to permit this constitutional pardon power of
the Chief Executive - once carried out - to be then reviewed by the state judiciary. By its express
terms, the grant of a pardon by the Governor carried out as a part of his "chief executive power"
under Section 116 is final and unreviewable.
For a court to entertain a lawsuit that seeks to nullify a pardon granted by the Governor in
any case other than those already mentioned violates the strict separation of powers principles of
the State Constitution. See Alexander v. State ex rel. Allain, 441 So. 2d 1329 (Miss. 1983). This
issue has been the subject of several Mississippi Supreme Court decisions, all of which have
uniformly held that the power to pardon belongs solely to the Governor.
Thus, in State v. Kirby, 51 So. 811 (Miss. 1910), the court held that the Constitution
grants the power to pardon solely to the Governor, and it cannot be delegated elsewhere by the
Legislature. See State v. Jackson, 109 So. 724 (Miss. 1926); Ex Parte Chain, 49 So. 2d 722
(Miss. 1951).
In affirming the Lieutenant Governor’s power to pardon when the Governor is absent
from the state, the court eloquently wrote about the breadth of the constitutional power to
pardon:
he is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department of the government has any control over his acts or discretion in such matters. Nevertheless he acts for the public. He dispenses the public mercy and grace .... [N]o authority other than his judgment and conscience can determine whether it is proper to grant or refuse the pardon.
Montgomery v. Cleveland, 98 So. 111, 114 (Miss. 1923) (emphasis added). See, e.g.,
ENCYCLOPEDIA OF MississiPPi LAW § 19:123, at 168 (2001). Therefore, the court review was to
determine if the governor was indeed "absent" from the State so that the lieutenant governor
could act in his stead, not to question the pardoning power given to the governor.
As noted in Whittington v. Stevens, 73 So. 2d 137 (Miss. 1954), the general rule in most
states is that where the constitution vests the power to pardon in the Governor, the exercise of his
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right to pardon, including commutation of sentences, once complete, may not be restricted. This
power is one "inherently vested in the people and they may vest it where they choose," and in
Mississippi they chose to vest this power with the Governor. Id. at 109. The court in
Whittington went on to explain:
We hold that under the Constitution the governor is vested with the exclusive power to pardon with the sole exception that the legislature may provide for the commutation of the sentence of convicts for good behaviors; that the power to pardon includes the power to commute sentences in criminal cases.
Id. at 140; see Randall v. Robinson, 736 So. 2d 1083 (Miss. Ct. App. 1999) (no state court may
infringe on the Governor’s power to pardon, citing Whittington, supra).
Perhaps most closely on point to this matter is the issue raised in Pope v. Wiggins, 69 So.
2d 913 (Miss. 1954). In Pope, this Court was asked to exercise judicial review over a
Governor’s decision to revoke a pardon. In holding that the Governor could revoke the pardon
without any kind of hearing to determine whether the conditions of the pardon had been met, the
Court made clear the unfettered discretion of the Executive Department:
Neither the judicial nor the legislative departments of the state are empowered to impose upon the chief executive the duty to perform judicial functions in the conduct of regular hearings in his office, even though in the exercise of his constitutional power of granting executive clemency there may be involved judgment and discretion in determining when he may be justified in revoking a suspended sentence ’for any reason deemed sufficient to the governor.’ He is the judge of the sufficiency of the information, from whatever source, in determining whether he has a reason that he is entitled to deem sufficient for his action.
Id. at 9 (emphasis added).
The Supreme Court very recently dismissed a matter that dealt with the Governor’s
pardoning power. In Turner v. State, No. 2012-RR 0033 (Jan. 26, 2012), the Court stated: "As
Turner’s requests relate to any eventual petition for clemency from the Governor, the Court finds
that the power to grant reprieves and pardons is vested exclusively in the Governor by Section
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124 of the Mississippi Constitution of 1890 and that any request for testing as it relates to a
clemency request should be dismissed without prejudice. Turner may pursue relief from the
Executive Branch."
The authorities cited by the Attorney General which he claims give our state courts the
power to review pardons involve judicial review of very different actions taken by a governor.
In Barbour v. State ex. rel. Hood, 974 So. 2d 232 (Miss. 2008), the court determined that a
statute was ambiguous and that the governor’s construction of the statute, even if different from
that of the attorney general’s interpretation, was permissible. Id. at 242.
And in Fordice v. Bryan, 651 So. 2d 998 (Miss. 1995), the court reviewed whether the
governor could veto parts of a legislative enactment and then sign the bill into law. The
Constitution grants the governor the power to veto parts of an "appropriation" bill. Miss. Const.
§ 73 (1890). The court stated the "case turns on whether House Bills 1613 and 1502 are
’appropriation bills." Id. at 1000. It found that because the bills were not appropriation bills,
the governor could not veto parts of them before signing them into law. Barbour v. Delta
Correctional Facility Authority, 871 So. 2d 703 (Miss. 2004), and Holder v. State, 23 So. 643,
645 (Miss. 1898), contain a similar analysis turning on whether a bill is an appropriation bill.
Thus, in these cases the State Supreme Court was not reviewing a constitutional power granted
exclusively to the Governor, but an act of the Governor that unlawfully amended legislation duly
adopted by the State Legislative Department under Section 338
8 The Attorney General also cites Haym v. United States, 7 Ct. Cl. 443 (1871), for the proposition that: "gubernatorial pardons are extraordinary acts requiring strict adherence at any conditions on them." However, the Haym court reviewed the language of the actual pardon granted to the plaintiff. Haym found that since the presidential pardon on its face required the person being pardoned to sign an oath and that person had not yet signed the oath, he was not yet pardoned. There was no judicial review of the "sufficiency of the facts or of the propriety of granting the pardon" prior to the President’s exercise of the pardon power, and Haym is inapposite.
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Judicial review of whether the applicant for a pardon has complied with the 30-day legal
notice provision of Section 124 is prohibited once a gubernatorial pardon has been issued. As
Justice Etheridge has explained:
The Governor has many questions to decide in the performance of his duties, and his decisions on these questions are final and conclusive on the other departments of the Government. For instance, he is limited in granting a pardon to such cases as where publications have been made for 30 days in a newspaper of the county, but his decision as to whether the publication was made is not open to judicial review.
State v. Metts, 88 So. 525, 530 (Miss. 1921) (Etheridge, J., dissenting)
The reasons why are logical. Whether or not a person being considered for a pardon has
given appropriate notice is a matter about which the Governor is the sole judge for it goes to the
"sufficiency of the facts and the propriety of granting the pardon ...." Montgomery v. Cleveland,
98 So. at 114. The requirement of publication of notice of the application is wholly procedural in
nature. It does not require that actual notice of a felon’s application for pardon be given to
anyone, even the victim of a crime, his or her family members, or their representatives. It is not
limited to felons who are incarcerated. It applies to every convicted felon, even one who has re-
entered the free world, is living with his or her family, and working as a productive member of
society. Publication of the application is a form of constructive notice that may be satisfied by
publishing the notice in "some" newspaper and in certain instances in a newspaper other than the
county where the conviction occurred.
In those instances where the representatives of the victim believe that the convicted felon
is incapable of rehabilitation and wholly incorrigible or the sensational nature of the crime
created extensive media coverage, publication in a newspaper of the submission of the
application is often superfluous because members of the local community will have told the
Parole Board, the Governor, and the general public about their opposition to clemency through
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meetings or communications with his staff, press conferences, and organized letter writing
campaigns undertaken by sympathetic organizations.
The act of granting a gubernatorial pardon has been entrusted by the people under Section
124 to the Governor as the chief executive officer. The State Judicial Department does not have
the authority under the State Constitution to review the actions taken by another Department of
state government or a state constitutional officer, including the Chief Executive of the State, with
respect to constitutional procedural rules that are related to the discharge or fulfillment of those
duties that the State Constitution grants exclusively to a Department of state government or to
one of its constitutional officers. See, e.g., Tuck v. Blackmon, 798 So. 2d 402 (Miss. 2001); Pope
v. Wiggins, 69 So. 2d 913 (Miss. 1954); Montgomery v. Cleveland, 98 So. 111, 114 (1923); State
v. Metts, 88 So. 525, 530 (Miss. 1921) (Etheridge, J., dissenting). The framers of the Mississippi
Constitution of 1890 were familiar with this sound principle which was part of the positive law
of Mississippi when the present Constitution was adopted, and the principle is based in part on
the strict separation of powers provisions of Sections One and Two of the State Constitution.
Compare Hunt v. Wright, 11 So. 608 (Miss. 1892), with Ex Parte Wren, 63 Miss. 512 (1886).
Had the framers of the Constitution believed that the 30-day notice provision was to be treated as
a substantive limitation on the clemency power rather than a procedural rule, or for that matter,
that any review by the State Judicial or Legislative Departments of an applicant’s compliance
with the 30-day notice provision was permitted, the framers would have expressly provided for
such review just as they expressly provided for senate review of the exercise of the clemency
power related to cases of treason and impeachment.
The decisions of the Mississippi Supreme Court finding that the Governor’s final act of
granting a pardon is unreviewable are in accord with those states with similar constitutional
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provisions. Courts as early as 1883 held that the state judiciary is without authority to inquire
into a pardon. In Knapp v. Thomas, 39 Ohio St. 377, 391 (Ohio 1883), the appellate court wrote
that it would be a "usurpation of authority" if the court tried to interfere with the governor’s
pardon power. The court explained that each branch of government can best safeguard its own
powers and jurisdiction by refraining from interfering with those rights held by the other
branches.
Over 100 years later, the Florida Supreme Court reaffirmed this principle:
Whatever may have been the reasons for granting [or denying] the pardon, the courts cannot decline to give [the decision] effect ... and no court has the power to review grounds or motives for the action of the executive in granting [or denying] a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be the manifest usurpation of authority.
Wade v. Singletary, 696 So. 2d 754, 756 (Fla. 1997). As one noted legal encyclopedia explains:
An executive may grant a pardon for good reason or bad, or for any reason at all, and the act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the courts have no concern with the reasons for the pardon. The constitution clothes the executive with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary.
59 Am Jur. 2d Pardon and Parole § 44 (2002).
II. The Enactments Of The Mississippi Legislature Show That The Power To Pardon Lies Solely With The Governor.
The State seeks to avoid the import of the Mississippi court decisions that directly deal with pardons under the Mississippi Constitution by citing cases from other jurisdictions. The State cherry picks certain quotes in support its position, even though those decisions address different issues. In Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003), a felon brought suit claiming the governor’s pardon included the restoration of his right to sit on a jury. The court said that the plain language of the pardon was limited to a restoration of his rights to vote and to hold office. There was no dispute as to the ability of the governor to have granted a pardon that included the right to sit on a jury. And in State ex. rel. Maruer v. Sheward, 71 Ohio St. 3d 513, 644 N.E.2d 369 (1994), and Jamison v. Flanner, 116 Kan. 624, 228 P. 82 (1924), the constitutional pardoning provisions were significantly different from those of the 1890 Mississippi Constitution in that they provided that the governors’ power as to all pardons was subject to regulation by the legislature.
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The Legislature has enacted numerous statutes that affect the rights and privileges of state
prisoners. These statutes evidence a legislative intent that none shall be deemed to affect or
constrict the Governor’s constitutional power to pardon. Miss. Code § 47-7-5 (2011) sets forth
the duties and powers of the State Parole Board. Section 47-7-5(3) provides that the Board
"shall have exclusive responsibility for investigating clemency recommendations upon request of
the Governor." Section 47-7-5(2) directs the Parole Board to notify a victim’s family when a
convicted felon is being considered for a pardon. The Board has no authority to infringe,
modify, or overturn in any manner whatsoever any pardon decision by the Governor regarding
pardons. While the Board can make recommendations in favor of or opposed to clemency, the
ultimate decision lies solely in the sound discretion of the Governor.
Similarly, Miss. Code § 47-5-157 (2011) sets forth some of the procedures when an
"offender" is entitled to discharge from the custody of the Mississippi Department of Corrections
by "parole, pardon or otherwise." This includes that the Department give 48-hour notice before
release of the offender as required by Miss. Code § 47-5-177 (2011). Section 47-5-177 requires
that the Department send notice in cases of discharge, including pardon, to the sheriff of the
county and to the chief of police of the municipality where the offender was convicted, or if the
offender is paroled to another county, to certain officials in that county. These statutes place no
limits on the pardon authority of the Governor.
With respect to a conditional pardon, the Legislature has expressly recognized that it is
only the Governor, and not a court, who may set aside such a pardon. See Miss. Code § 99-19-
29 (2011). When revoking a conditional pardon, the action of the Governor taken under Section
124 is unreviewable by the courts. See Pope v. Wiggins, 69 So. 2d 913 (Miss. 1954).
16
Miss. Code § 7-1-5 (2011), which enumerates the duties and powers of the Governor,
specifically lists some of the constitutional duties of the Governor. For example, Section 7-1-5
(c) states that "he shall see that the laws are faithfully executed." Similarly, Section 123 of the
Mississippi Constitution states that "the governor shall see that the laws are faithfully executed."
Nowhere in Section 7-1-5 does the Legislature purport to regulate the exercise of the pardon
power vested in the Governor. The Mississippi Legislature has thus recognized that no such
statutory authority is permissible.
III. There Is No Express Or Implied Remedy For An Alleged Violation Of The 30 Day Notice Provision, And Only The Legislature Has The Authority To Grant Such A Remedy.
The Legislature has not made it a crime for the recipient a pardon to fail to comply with
the 30-day notice period found in Section 124. This is not surprising because the judicial
precedents of the State Supreme Court show that the 30-day notice provision is wholly
procedural in nature and is a matter related to the Governor’s exercise of his exclusive authority.
Assuming for the sake of argument that the Legislature has the authority to adopt such
legislation, any such applicant is entitled to know as a matter of due process what legal effect
arises from failure to comply with the 30-day requirement, including the penalties or forfeitures
to which he or she will be subjected. Miss. Const. § 14 (1890); U.S. Const. Fourteenth Amend.
The Court cannot nullify a gubernatorial pardon issued under Section 124 except for
three limited circumstances, none of which apply here. Thus, the Court cannot put someone who
has been pardoned and released as a result of the pardon in jail; refuse to release a person who is
incarcerated and has been pardoned; or nullify a pardon granted to someone who has been in the
free world because he has allegedly violated the 30-day publication provision of Section 124.
Section 33 of the Mississippi Constitution vests the "legislative power" in the State Legislature,
17
4.
Miss. Const. § 33 (1890), and only the State Legislature has the authority to make it a criminal
offense or create a penalty for the failure of the recipient of a pardon to comply with the 30-day
publication provision.
To order that the pardonees must return to the custody of the Mississippi Department of
Corrections or be arrested; that those pardonees who are incarcerated must remain in the custody
of the Mississippi Department of Corrections; or that any pardonees who failed to publish for 30
days could be made to suffer any penalty, including forfeiture of their pardons, is wholly beyond
the judicial power conferred by the Mississippi Constitution upon the state trial and appellate
courts. Any such order would violate the separation of powers provisions of Miss. Const. §§ 1-2
(1890), which gives legislative power solely to the Legislature. See Tuck v. Blackmon, 798 So.
2d 402 (Miss. 2001).
IV. Petitioners Are Not Applicants Under Section 124, and the 30-Day Notice Provision Does Not Apply To Them.
Section 124 of the Mississippi Constitution of 1890 contains two sentences. The first
sentence confers the Governor’s general pardon power and states that in all criminal and penal
cases, "the governor shall have the power to grant reprieves and pardons . . . ." The second
sentence contains limitations on the general pardon power in cases of treason, and it also
provides that "after conviction, no pardon shall be granted until the applicant therefor shall have
published for thirty days, in some newspaper. . . ." (Emphasis added.) According to the plain
language of Section 124, publication is required only where there is an applicant. In the case of
the Petitioners, they served as Mansion trustees and never applied to Governor Barbour or the
State Parole Board for a pardon. Instead, it was Governor Barbour who decided to exercise the
general pardon powers conferred solely upon the chief executive by the first sentence of Section
124 and to pardon Petitioners.
Black’s Law Dictionary (9th ed. 2009) defines an applicant as "[o]ne who requests
something; a petitioner, such as a person who applies for letters of administration." As set forth
above, Petitioners never requested anything. Therefore, under the plain meaning of the term
"applicant," they are not subject to the publication requirement.
Even if the Court were to go beyond the plain language of Section 124, and it should not,
this reading of Section 124 makes common sense in the broader picture. Where the Governor
knows and has observed the acts of persons such as Petitioners, it is the Governor’s prerogative
to grant a pardon, or not, as he sees fit. Thus, there is no need for an application and no need for
publication.
Where one convicted of a felony, however, decides to apply independently to the
Governor for a pardon, in most cases the Governor will have no information concerning the
applicant and additional information may assist him in making a clemency decision. The
obvious purpose of the publication requirement is to allow those who know the applicant as well
as those that have been affected by the applicant’s crime to come forward and give the Governor
information that he can consider in making a pardon decision. In contrast, where the Governor
has made the decision to grant a pardon based on his own knowledge and investigation, the
publication requirement does not serve any purpose.
Accordingly, because Petitioners did not apply for a pardon and, therefore, are not
"applicants," they are not subject to the 30-day notice provision of Section 124, and their
pardons are in no way affected by any purported failure to publish.
19
V. Even If This Case Were Justiciable - Which It Is Not - The Attorney General’s Interpretation Of The 30-Day Provision Is Demonstrably Incorrect.
General Hood erroneously contends that the requirement in Section 124 of the
Mississippi Constitution requires publication for five consecutive weeks if a weekly newspaper
or, if in a daily, 30 consecutive days. This position is wrong for at least three reasons. First, had
the framers of the 1890 Constitution desired such a requirement, they could have written the
provision to state that notice shall be "for 30 consecutive days." They did not. Instead, a plain
reading of the text requires only that the notice have been "published for 30 days." In other
words, that the notice was published at least 30 days before the date of the pardon. General
Hood cannot insert words into the Constitution that the framers chose not to include.
Second, in interpreting a similar notice requirement, the Mississippi Supreme Court ruled
long ago that consecutive publication for 30 days is not required. In Henritzy v. Harrison
County, 178 So. 322 (Miss. 1938), the statute at issue required Harrison County to publish notice
in the newspaper of its intent to condemn private property for use in the construction of a
seawall. The statute provided that "publication may be made to the owners of lands sought to be
condemned for such right of way as is here involved for thirty days in a newspaper." The
affected landowners argued that because the notice was not published for 30 consecutive days,
the taking was barred.
The Court disagreed and held that "[t]he requirement of a given number of day’s
publication of a notice has been quite uniformly held not to contemplate a daily printing of the
notice." Id. at 327. Thus, General Hood’s interpretation of the similar language in Section 124
is foreclosed by the holding in Henritzy.
Ai]
Third, General Hood’s attempted insertion into the Constitution of a "30 consecutive
days" requirement ignores the reality that many of the county newspapers published in this state
are weekly, not daily, papers. Accordingly, for many of the newspapers in which the notices are
to be published, it is impossible to publish a notice for 30 consecutive days. Instead, what is
customarily done is to publish the notice once a week for four consecutive weeks. In Henritzy,
the Court expressly approved of this practice. Id. at 326 (holding that where a notice "was
published in a newspaper weekly for four consecutive weeks," the 30-day publication provision
was satisfied). To the extent that General Hood (in his own interpretation of the Governor’s
powers granted by the Constitution) would require publication for 5 weeks, or 35 days, such a
requirement would add to the time period contained in Section 124 and is, itself,
unconstitutional.
VI. If The State Supreme Court Overturns 125 Years of Judicial Precedent And Announces A New Principle of Substantive Law, It Should Not Apply This New Principle To The Pardons Received By Petitioners Or Any Other Pardonees.
The Attorney General’s suit is an effort to overrule over 125 years of precedent of the
Supreme Court of Mississippi which holds that one Department of the State Government
Department does not have the authority to obtain judicial review of the actions taken by another
Department of State Government with respect to constitutional procedural rules that are related
to the discharge or fulfillment of those duties that the State Constitution grants exclusively to a
Department of State Government or to one of its constitutional officers. See, e.g., Tuck v.
Blackmon, 798 So. 2d 402, 405 (Miss. 2001) ("[t]he courts will generally refrain from interfering
with the Legislature’s interpretation and application of its procedural rules and with its internal
operations"); Pope v. Wiggins, 69 So. 2d 913, 915 (Miss. 1954) (the pardon power "is not
limited by any other provision of the State Constitution, nor can the same be limited or restricted
21
by either of the other two principal departments of the state government in the absence of a
constitutional amendment so authorizing"); State v. Metts, 88 So. 525, 530 (Miss. 1921)
(Etheridge, J., dissenting) ("The Governor has many questions to decide in the performance of
his duties, and his decisions on these questions are final and conclusive on the other departments
of the Government. For instance, he is limited in granting a pardon to such cases as where
publications have been made or 30 days in a newspaper of the county, but his decision as to
whether publication was made is not open to judicial review."); Hunt v. Wright, 11 So. 608
(Miss. 1892); ExParte Wren, 63 Miss. 512 (1886).
To overturn this longstanding, well established precedent and to enforce the procedural
30-day notice provision as a substantive principle of law for the first time would be to establish a
new substantive principle of law about which the pardoned defendants had no notice. To order
that the pardon granted to any pardoned defendant is null and void because of any pardoned
defendant’s putative failure to comply with the procedural 30-day notice provision erroneously
would require judicial review of the Governor’s exercise of his constitutional authority to grant
pardons. Any such order further requires either that the Circuit Court erroneously issue an order
directing that a pardoned inmate be returned to the custody of the MDOC and become
incarcerated or that a pardoned inmate remain in the custody of the MDOC.
As demonstrated by the authorities above, the state Judicial Department has consistently
refused to exercise its judicial power to determine if another State Department of Government
created by the State Constitution or another State constitutional officer has complied with a
constitutional procedural requirement after the State Department or constitutional officer has
officially acted. To provide the relief sought by Plaintiff would deny each pardoned defendant
substantive and procedural due process of law as guaranteed by the Due Process Clause of the
22
Fourteenth AmendmentAmendment to the United States Constitution and Section 14 of the Mississippi
Constitution of 1890. Accordingly, if the Mississippi Supreme Court overturns or disregards the
forgoing 125 years of precedent, the Court should apply the new substantive principle of law
prospectively only, and as a matter of fundamental fairness, any such new substantive rule
should not be applied to the pardoned defendants.
In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court of the United States
held that there should be no retroactive application of a new rule of law where, in the face of
reliance on the prior rule of law, the new decision "could produce substantial inequitable results
if applied retroactively." Id. at 106-07. Here, where the Mississippi Supreme Court has
repeatedly held that the application of procedural requirements is solely within the discretion of
the branch to which the procedures are delegated, it would be fundamentally unfair to not only
change the law, but to hold that prior, good faith reliance on 125 years of decisions is misplaced.
Accordingly, no matter how the Court now rules concerning the publication provision of Section
124, any such new rule should only be applied prospectively.
VII. Even If This Case Were Justiciable - Which It Is Not -. Failure To Comply With The 30-Day Publication Provision Is Harmless Error.
In Chapman v. California, 386 U.S. 18, 22 (1967), the United States Supreme Court
defined harmless errors as "constitutional errors which in the setting of a particular case are so
unimportant and insignificant" that they do not mandate automatic reversal of conviction. The
Mississippi Supreme Court applies the Chapman analysis when reviewing constitutional error.
According to the Court in Richardson v. State, 74 So. 3d 317 (Miss. 2011):
Harmless errors are those which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. Williams v. State, 991 So.2d 593, 599 (Miss. 2008) (quoting Tran v. State, 962 So.2d 1237, 1247 (Miss. 2007)). We "have
23
the duty to be fair, not only to the defendant, but to the State as well." Tran, 962 So.2d at 1246. "Harmless-error analysis is often necessary to prevent unfair prejudice to the State, and the State is certainly prejudiced where convictions are reversed based on errors which do not affect the substantial rights of the parties." Id. (citations omitted).
74 So. 3d at 327-28.
Harmless error analysis also applies in civil cases. For purposes of this analysis, courts
distinguish "structural error" from "harmless error." In Kindhearts for Charitable Humanitarian
Development v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010), the court explained:
"Structural errors typically arise in the context of criminal trials. A structural error is "a defect in the framework within which the trial proceeds, rather than simply an error in the trial process itself." Neder v. U.S., 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1 999)(internal citation omitted). Because they "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, "structural errors per se require setting aside the entire proceeding. Id. at 8-9, 119 S. Ct. 1827.
By contrast, trial-type errors are subject to harmless error analysis, because they "may be quantitatively assessed in the context of other evidence presented ... to determine" the effect of the error. Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Judicial review of agency action under the APA, moreover, contemplates a harmless error analysis. 5 U.S.C. § 706 ("[A] court shall review the whole record ... and due account shall be taken of the rule of prejudicial error."); see also Shinseki v. Sanders, U.S. , 129 S.Ct. 1696, 1704, 173 L.Ed.2d 532 (2009) (noting that "the APA’s reference to ’prejudicial error’ is intended to sum up in succinct fashion the ’harmless error’ rule" (internal quotation and citation omitted)).
An analogy may assist to clarify the distinction between structural errors and those amenable to harmless error analysis. If the proceedings before OFAC were a house, and termites represented OFAC’s constitutional violations, the question of whether the violations rise to the "structural" level is whether the termites’ damage to the structural integrity of the house is so significant as to require demolishing and completely rebuilding the house, or whether repairs can return the house to a safe and stable condition. In other words, I must determine whether what was done was irreparably destructive, or simply damaging, even seriously damaging.
710 F. Supp. 2d at 653-54 (emphasis added).
The analogy in Kindhearts is instructive in the instant case. The Attorney General asks
the Circuit Court to "demolish" the pardons because of an alleged constitutional violation that
undisputedly would not have affected the outcome, i.e., the issuance of the pardons. The
publication provision is for the benefit of the Governor as the chief executive officer. The only
logical purpose of this provision is for the Governor to have an opportunity to consider public
comment when deliberating about whether to exercise his exclusive constitutional clemency
authority. To find "structural error" the Circuit Court must find that the failure to comply with
the publication provision resulted in actual prejudice, that is, the party alleging error must show
that publishing notice for 30 full days would have affected the outcome.
There is no constitutional or statutory provision requiring the Governor to do anything in
response to the publication. There is no constitutional provision for anything to happen as a
result of the proposed publication. The only individual who can attest to whether or not the
failure to publish would have resulted in a different outcome is the Governor who issued the
pardons. To make such a finding, this Court must impermissibly delve into the deliberative
process of the Governor when granting a pardon. Without delving into the deliberative process
of the Governor, this Court cannot find structural error, and it must therefore conclude that any
constitutional error resulting from the failure to publish notice was harmless constitutional error.
VIII. The Attorney General Is Estopped From Claiming That The Notices Were Untimely When His Special Assistant Attorney General Assigned to the MDOC Undertook To Publish The Notices For Petitioners.
Consistent with Miss. Code § 47-7-5(3) (2011), the Parole Board has the exclusive
responsibility for investigating clemency recommendations upon request of the Governor.
Individuals seeking clemency may apply to the Governor’s Office or to the Parole Board. If the
former, then the Governor’s staff routinely sends the application or other request for clemency to
the Parole Board for investigation.
25
.4
The Parole Board investigates the application typically by having one of its investigators
meet with the applicant, the prosecuting attorney, law enforcement, victims and/or supporters of
the applicant. The investigator gives a report of the investigation to the Parole Board, and where
possible and necessary, the Parole Board itself interviews the applicant. 10 The five-member
Parole Board then votes on whether to recommend clemency to the Governor.
As was done with the previous pardons granted by the Governor at the end of his first
term in 2008, as well as in 2009, the MDOC undertook the responsibility to arrange for the
publication of, and payment for, notices under Section 124 of the Mississippi Constitution for the
trusties who worked at the Governor’s Mansion and were in the custody of MDOC. Daryl
Neely, the Governor’s policy advisor for Corrections, had numerous conversations with MDOC
about publication for the Mansion trusties and other inmates in the custody of the MDOC. Until
November 28, 2011, his main contact at the MDOC was Commissioner Epps.
On November 23, 2011, the Governor met with his staff regarding pending pardon
requests, discussing in particular the pardons of the mansion trusties. After that meeting, Neely
talked to Commissioner Epps about publication of the notices on behalf of the trusties.
Following up on that conversation, on November 28, 2011, David K. Scott, the Special Assistant
Attorney General assigned to MDOC, texted Neely about Section 124 of the Mississippi
Constitution from Scott’s cellular phone to Neely’s cellular phone. Their communications about
publication for the inmates in the custody of the MDOC continued through December 7, 2011,
10 Mansion trusties do not have pardon files at the Governor’s office or at the Parole Board. They have in a sense "living files" because both the Governor and the First Lady, as well as the Highway Patrolmen assigned to the Governor’s security, observe them every day and provide the information on which the Governor makes his decisions as to clemency. Some mansion trusties have been paroled by the Parole Board; some trusties have been pardoned by the Governor. Some inmates do not successfully complete their terms at the mansion because they failed to follow the rules. They are sent back to the custody of the MDOC to serve the rest of their term.
26
when Scott stated that "MDOC will take care of those still in custody." True and correct copies
of printed screens of the text messages exchanged between Scott and Neely appear below." The
messages from Scott are the ones that appear in gray, and the messages from Neely appear in
green.
The time entry at the top of each screen shows the time of day when the screen was printed. The date when each message was sent appears in the body of the screen itself.
27
4:17 PM 25%
1 you provide the ries of the inmates that need to run a notice
Dec 6, 2011 5:16 PM
Okay
Messaqe
Dec 7,201110-58 AM
ELI
29
Qka) r Ja 13 2O2O.6A.
aL Text Message
30
MDOC staff arranged on December 8, 2011 for the notices to be printed in the papers of
the counties of conviction of your four Petitioners for four weeks as follows:
> Legal ad for David Gatlin in The Rankin Record to run once a week for four weeks during the weeks of December 11th, 18t", 25th and January 1st�
Legal ad for Charles Hooker in the Clarkdale Press Register to run twice weekly during the weeks of December 11 th , 18th 25th and January 1st
Legal ad for Nathan Kern in the Clarksdale Press Register to run twice weekly during the weeks of December 11t, 18’, 25th and January 1st
> Legal ad for Anthony McCray in The Enterprise-Journal to run the weeks of December 1 1 th, 18th 25" and January 1st and 8 th .
Special Assistant Attorney General David K. Scott was copied on the MDOC memo outlining
these dates. The Complaint alleges that the notice for Petitioners Hooker and Kern was first
published on December 14 and for Petitioner Gatlin on December 15. Thus, despite the failure
of Mr. Scott to effect the publication 30 days before their pardons, it is uncontested that these
Petitioners published at least 23 and 22 days, respectively, before issuance of their pardons. As
to Petitioner McCray, Special Assistant Attorney General David K. Scott or his designee
requested that publication begin December 12, 2011, but the paper that received the notice failed
to publish the notice because no payment was enclosed. Petitioner McCray’s publication first
ran on January 15, 2012.
On January 6, 2012, the Governor signed executive orders pardoning the trusties at the
mansion. Neely spoke to Commissioner Epps about providing the notice to the sheriff of the
county and the police chief of the city where the pardonees had been convicted, pursuant to Miss.
Code § 47-5-177 (1972). MDOC provided the notice of release of the mansion trusties on
January 6, 2012.
The Attorney General, having represented to the Governor that his office and MDOC
would undertake to publish the notices for the mansion trusties, and having actually effected
31
publication, cannot now complain about the propriety of the notice. Equitable estoppel and
quasi-estoppel apply to bar these claims. 12
Equitable estoppel is "the principle by which a party is precluded from denying any
material fact, induced by his words or conduct upon which a person relied, whereby the person
changed his position in such a way that injury would be suffered if such denial or contrary
assertion was allowed." Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991). "Equitable estoppel
is a rule of justice which prevails over all other rules" and can even, in proper cases, supplant the
constitution. Id. at 137. Black’s Law Dictionary explains that estoppels can arise by
representation: "estoppel by representation: An estoppel that arises when one makes a statement
or admission that induces another person to believe something and that results in that person’s
reasonable and detrimental reliance on the belief." BLACK’S LAW DICTIONARY (9th ed. 2009).
Here, David K. Scott, acting in his official capacity as Special Assistant Attorney
General, Miss. Code §§ 7-5-5, 7-5-7 (2011), represented to Daryl Neely, the Governor’s
corrections policy advisor, on December 7 via text message that "we will do that," i.e., handle
notice publication, and that "Mdoc will take care of those still in custody." The Governor’s
Office relied on this representation. This reliance was reasonable because in 2008 the Attorney
General’s office undertook the duty to publish notice and did so properly. The reasonable
reliance will result to the detriment of Petitioners, viz., their pardons being nullified and their
12 There should be no legitimate dispute from anyone that the doctrines of waiver and estoppel can apply to the State as a result of the actions of the Attorney General. See, e.g., Weible v. University of Southern Mississippi, --- So. 3d ----, 2011 WL 5027203, *14 n.5 (Miss. Ct. App. Oct. 18, 2011) ("We note, however, that the state can be estopped by the acts of its authorized agents."); Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So. 2d 416, 424 (Miss. 2004) ("the state and its political subdivisions may be equitably estopped under the proper circumstances (quotation marks omitted) (collecting cases).
32
being taken into custody and returned to MDOC and incarcerated in one of its facilities. Thus,
the State should be estopped to complain that the notices are defective.
Quasi-estoppel also bars the Attorney General’s suit. The "long-standing doctrine [of
quasi-estoppel] is applied to preclude contradictory positions by preventing a person from
asserting, to another’s disadvantage, a right inconsistent with a position previously taken."
TC.B. Const. Co. v. W.C. Fore Trucking, Inc., --- So. 3d ----, 2011 WL 5530288, *4 (Miss. Ct.
App., Nov. 15, 2011).
Indeed, when Scott texted to Neely asking "Can you provide the names of the inmates
that we need to run a notice for?" (emphasis added) and telling Neely that "Mdoc will take care
of’ notice for the mansion trusties, Scott took a position on behalf of the Attorney General’s
office that is contradictory to the position it now takes. The former position was that the
Attorney General’s office and MDOC would perform the duty of publishing notice. The position
taken here is that the pardonees or the Governor’s office were required to effect publication.
Quasi-estoppel prevents General Hood from now asserting this contradictory position because it
would disadvantage and prejudice Petitioners.
IX. Petitioners Will Suffer Irreparable Harm If This Honorable Court Does Not Grant An Emergency Stay And Provide Guidance As To The Controlling Legal Principles That Govern Any Evidentiary Hearing Held By The Circuit Court.
Supposing, arguendo, that the Circuit Court has jurisdiction to weigh the validity of the
pardons, the Circuit Court has already announced that there will be one issue, and one issue only,
at the February 3 hearing, viz., the date(s) that an applicant published notice that complied with
Section 124. See Order, at 2 (Jan. 24, 2012); attached as Exhibit F. Thus, Petitioners will not be
given any opportunity to be heard on any other legal or equitable defense to this suit, including,
most remarkably, whether a Governor’s grant of a pardon is reviewable, the correct
33
interpretation of Section 124, why the State should be estopped, or any other point. The court
has also already denied the Motion to Transfer or Dismiss which raised the issues of subject
matter jurisdiction and separation of powers. See Order, at 1 (Jan. 24. 2012); attached as Exhibit
F. This is not the sound exercise of discretion; it is the very abuse of judicial discretion. See
Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 50 F.3d 253, 257 (3" Cir. 1995) (abuse of
discretion "if the judge fails to apply the proper legal standard or to follow proper procedures in
making the determination, or bases an award upon findings of fact that are clearly erroneous")
(internal quotation marks omitted). In the final analysis, it would be a denial of due process to
have a judicial hearing limited to the claim of the State without regard to the legal and equitable
defenses of Petitioners, Miss. Const. § 14 (1890); U.S. Const. Fourteenth Amend., and therefore
would constitute irreparable harm requiring this Honorable Court’s emergency intervention and
stay.
CONCLUSION
1. A writ of prohibition may issue "to prevent some palpable and irremediable injustice."
State v. Maples, 402 So. 2d 350, 351 (Miss. 1981). Imprisoning a person who holds a valid
pardon constitutes a "palpable and irremediable justice." See Exparte Burchinal, 571 So. 2d 281
(Miss. 1990) (granting writ of prohibition against contempt order, where contemnor-applicant
was to be jailed for ten days). See also State v. Caldwell, 492 So. 2d 575, 576-77 (Miss. 1986)
(granting what amounted to a writ of prohibition to protect murder defendant against trial in
improper venue, notwithstanding that any error could be corrected on appeal after conviction)
(implicitly recognizing that experience of being defendant in illegal trial for murder could not be
remedied simply by granting a new trial at some future date). The relief sought by this Petition
is a writ of prohibition ordering that the Circuit Court not exercise any further jurisdiction and to
34
enter an order dismissing the suit with prejudice or, in the alternative, to enter an emergency stay
of any further proceedings in the Circuit Court pending receipt of briefing on the issues raised
this Petition and a final resolution of those issues by this Court.
2. Petitioners cannot obtain the requested relief by interlocutory appeal or by appeal from
final judgment because they will be irreparably harmed by the Circuit Court’s continued
assertion of jurisdiction over Petitioners and those pardonees who are in the custody of the
MDOC and remain incarcerated.
3. An emergency stay of proceedings in the trial court pending issuance of the writ is
needed because the very pendency of the suit constitutes irreparable harm to Petitioners and all
those recipients of the Governor’s pardons who are in the custody of MDOC and remain
incarcerated.
4. In the alternative, Petitioners request permission to appeal the interlocutory orders of the
Circuit Court under Miss. R. App. P. 5. In response to the Complaint, Defendants filed a Special
Appearance for Purposes of Motion to Transfer and/or Motion to Dismiss, including a separately
filed Supplement. See Special Appearance for Purposes of Motion to Transfer and/or Motion to
Dismiss (Jan. 20, 2012), attached as Exhibit I; Supplement to Special Appearance for Purposes
of Motion to Transfer and/or Motion to Dismiss (Jan. 23, 2012), attached as Exhibit J. The
Motion for Transfer argues there are no provisions under the Uniform Rules of the Local Rules
for Judge Green to have the case moved to her docket, and the matter should be re-assigned to
Judge Weill. The Motion to Dismiss raises issues under Rule 12 of the Mississippi Rules of
Civil Procedure, including the subject matter jurisdiction of the Circuit Court to judicially
review, under the strict separation of powers provisions of the State Constitution, a decision
which is within the exclusive constitutional authority of the State Executive Department. An
35
Order was entered denying the Motion to Transfer or Dismiss on January 25. Your Petitioners
seek permission to appeal, with emergency stay, this Order.
5. Consideration will materially advance the termination of the litigation. If, as Your
Petitioners assert, the Court is without jurisdiction to review the actions of the Executive, the
entire proceeding should be dismissed immediately. Further, the granting of the Petition is
necessary to protect Petitioners from irreparable injury, specifically, the possibility of being
returned to prison after receiving a valid pardon. In addition, the issues raised herein are
important to the administration of justice. In addition to separation of powers, the issue of
whether one Circuit Judge may sign an order, without any authority from the Uniform or Local
Rules, re-assigning a case from the randomly selected Judge is crucial to public confidence in the
official acts of the state trial courts. With respect, as a result of the non-random assignment, all
of the proceedings in this case have lacked legitimacy and all orders entered in the Circuit Court
should be vacated and set aside.
FOR THESE REASONS, Petitioners pray that this Court will issue the writ of
prohibition and/or mandamus requested by this Petition, or, in the alternative, that this Court will
treat this petition as an interlocutory appeal by permission, stay all proceedings in the trial court,
dismiss the State’s suit, and order such further proceedings as the Court deems appropriate.
ACCORDINGLY, Petitioners respectfully request that this Court issue a Writ of
Prohibition and/or Mandamus to the Circuit Court to dismiss the complaint, or to stay all further
proceedings before the Circuit Court pending briefing on this Petition or, in the alternative, on
the interlocutory appeal before the Supreme Court of Mississippi and a decision of the Supreme
Court regarding the Circuit Court’s exercise of jurisdiction over the suit brought by the State and
for such other general or special relief as may be appropriate.
36
Respectfully submitted, the 30th day of January, 2012.
Respectfully submitted,
DEFENDANTS CHARLES HOOKER, DAVID GATLINATHAN KERN AND ANTHONY MCC Y 7?
- / THOMAS M. FORTNER
THEIR ATTORNEY
OF COUNSEL:
ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB No. 5441 Richard A. Filce MSB No. 100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax)
37
CERTIFICATE OF SERVICE
I, Thomas M. Fortner, do hereby certify that I have this date caused to be served by hand-
delivery or mailed via U.S. Mail, postage prepaid and via e-mail a true and correct copy of the
above and foregoing Petition for Writ of Prohibition and/or Mandamus to:
Honorable Jim Hood, State Attorney General Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201 bwill(ago.state.ms.us
Alison Oliver Kelly, Esq. Alison Oliver Kelly, PLLC P.O. Box 1644 Jackson, MS 39215 [email protected]
Sylvia S. Owen, Esq. OWEN LAW FIRM P. 0. Box 7252 Tupelo, MS 38802 [email protected]
Honorable Tomie T. Green Circuit Judge, Seventh District First Judicial District of Hinds County, Mississippi Hinds County Courthouse Jackson, MS 39201 [email protected]
Honorable David K. Scott Special Assistant Attorney General Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 [email protected]
Cynthia A. Stewart, Esq. 118 Homestead Drive, Suite C Madison, MS 39110 [email protected]
38
Edward Blackmon, Jr., Esq. Blackmon & Blackmon 907 W. Peace Street Canton, MS 39046
John M. Colette, Esq. 190 B. Capitol Street, Suite 475 Jackson, MS 39201 [email protected]
THIS, the 30th day of January,
THOMAS M. FORTNER
STATE OF MISSISSIPPI SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN SECRETARY OF STATE JACKSON, MISSISSIPPI
I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of
Executive Order No. 1069
OFFICIAL PARDON FOR NATHAN KERN
the original of which is now a matter of record in this office.
Given under my hand and Seal of Office this the 18th day of January, 2012
STATE OF MISSISSIPPI
f.. c0f
cJ,\
I.hereby Certify that this isatnie’ and complete copy of the.. docun)ent on file in this office. DA ’Jo.x. (Q,i ,20t2-
BY:’ This Certification Stamp Replaces Our
Previous Ce rtification System.
STATE OF MISSISSIPPI Office of the Governor
I’XE(’LYIl\’E ORDER NO. 1069
10 %VIIOM IF IAV CONCERN:
WHEREAS. Nathan Kern, M Lsissippi Department ii I Curreeiinto No. 31 02). was, sentenced to serve three (3) years in Cause Number S(35 on i\tlt4lu.cl I. 19721 in ("whoola Count.’ lot the 0 ReuSe ol But’vl:ir, 1.0 serve t\\ eiity (21 ) veins in Cause No. 572$. nit Fettruarv 11. 974 in Coa Iioina Couiity br the utletuic ui Rubbery, and to serve a lii sentence in Ca usc No. 642Q, on Feb ruary 12, 1952 in C. uahunta County on the cIiiic iii Rubhcr
\YIIEREAS. Nathan Kent became a trusty and was u’aiisien’ed to the (iuxentor’s M:itinit. ’. here he proved to he ii diligent and dedicatetl iwkmin: and.
NOW. LII EREFORE. I, I late IRiih&ttir, Governor ul’ the Slate cit Mississippi. utidcr atid b virtue of the authority vested in me by the ( ’misfit ution and Laws of this State. do heretiv wam to Nathan Keni it fill. cunipke, tiiid tineoti.htiviiiil padun kit hi erunes and convict inns named herein: and hettcctbrth. shah be absolved ftnni all kual conseqttellees ofthtese .,’riiiies and coii ViCtiolis.
I do authorize and direct you, upon receipt oh this Executive Order. Cu take not ice at id be vented accord ii ilv.
IN WITNESS \VIIEREOJ". I have hei’etiiuo set my hand and caused the ( ireat Seal ut’the State of Misisrppi to be affixed.
itt the (.’iipitol. in the Cur oh’.tacksttii, this the tuft day January, iii 111c year of our Lord too tiu.uus:ind :uid twelve, :iuud oh’ the two hiunlred and thuitivixiht ear oh the Ull !’uies cuiAmer
/ I-I\LE\’. 13A/(30IJR GOVT z
BY I IF (i\’IRNOR
C . Sh’(Rl....ARY OF STA1 ti
.4
STATE OF MISSISSIPPI SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN SECRETARY OF STATE JACKSON, MISSISSIPPI
I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of
Executive Order No. 1071
OFFICIAL PARDON FOR CHARLES HOOKER
the original of which is now a matter of record in this office.
Given under my hand and Seal of Office this the 18th day of January, 2012
STATE OF MISSISSIPPI
. . ..
ci (\ i
OFFIC\I/C)
Iheroby certify that this iatrue and cornpfcla copy.ot the.: document on file in this offlc3. DATED .2fl
Il I BY: U. J(�
This Certification Sta.qp Rpaces Our Previous Certification y5tern.
STATE OF MISSISSIPPI Off ice of Llie Governor
EX(L)1’1’E ORDER NO. 1071
TO WHOM IT MA\ CONCERN:
\IIEREAS. Charles Htokei v1 saippi Department ol t_oriections No. 7485. was sentetteed in Cause Number 742 in ( oaliotu:t County. Mississippi on February 4.
92. to sene a jt sentence on a charue of .Murder: and.
\VihERE:S. (’bathes Hooker bc’;tnie a lntsy and eats ttauislrrcd to the kiciitnt’ Ma osiolt. where be proved to he a diligent and dedicated workman: and.
NOW, II I EREFORE. I, Iliticv Barbour, ( iun’crnor of the State of Mississippi. tinder and b jibe ill- the :tuthoiitv vested ill nie h the (’oust ittutbtti and Laws oF th is State. do graill to Charles Hooker :1 lulL cotnItlete. ittttt UttCtttitht joint1 patdutu fo r the crime and euttictitutt niutneul herein: and heneel’ortlu. shall be absolved ftouut all letitl coutseLluc’neca iii hitS ct -tine uttd euflvic’Iion.
I dii tLuth(unLe iuts I direct you. upon receipt Of this fixeeuitive Order, tit take nouci,’ tuil he tauvented tccütdiitdv.
IN \\ ITN ESS W’llEREOI:. I have hereunto set my hand and eutised tile t.irt’:u Seal iii’ the Slate ofiklississippi to he :il tixd
- - 1)() I ut tlti, tpi ml ill ii it my cut Jackson, this the 6111 dzt .Iantiuiy. in tie icar o I our
’ Ltd tt0 thousand and tti,lc and or tht 1: two hundred .111d thirty-si xilt year ut the
nttu.d States ol \tm.rti, I
ALE’ R.RB(.)UR tUVhkN)l
BY FIlL (.)\’ERNC)R
c Sh(kIFAky OF STA’ll
STATE OF MISSISSIPPI SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN SECRETARY OF STATE JACKSON, MISSISSIPPI
I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of
Executive Order No. 1070
OFFICIAL PARDON FOR DAVID GATLIIN
the original of which is now a matter of record in this office.
Given under my hand and Seal of Office this the 18th day of January, 2012
STATE OF MISSISSIPPI I hereby cerIiy that this tsatwe and compte copy of the. docurnenton fie in this off1c. nATrlJcr\ V 2011�
BY: .. h(� This Ceftfication Su Riptaces Our
Previous Certification Sysem.
STATE OF MISSISSIPPI Office Qf die Governor
lxz t_nf X~~, EXECUTIVE ORDER NO. 1070
((1) %\HO\l IT \1AV C’ON(VI(N:
\\’IIERFAS. David Gatlin, Mississippi Department ul’ Corrections No. 13343. VQIS iiictteed fil Cztuw Number 4263, Causc No. 4265 and Cause No. $542 in Rnnkiii ( ’uuniv. Mississippi on June 3 1994 to serve i i te sentence on a cltitrge of M aider, it)
serve twelity (2(1) years on a charee of .Auwavited Assault and to serve ten (I 0) ve,trs on
a vlizirr ol’ l3uruIary ota Dwelline: and,
WH EREAS. David Gatlin became it (nitV and was it isIrte.d to the (jovernur’s Mansioti. where lie proved to he a diligent and dedicated workman: and.
N()\V. I’ll EREI’()RE, I. Ilatey harbour. Governor of the Slate tit’ Mississippi. tinder unid by virtue 0! the atitlioritv vested in IIIC by the Constitution and Laws of this State. do hereby grant to David Gatlin a 11114 contt)lcte, and unconditional pardon Ibr these crimes and Cottvieiioits named herein: and lienechirib. shall he absolved from all legal consequences of these (’rifles iIILI convictions.
I do :tuthoriie and direct you. upon receipt at’ this Eecuti ye (Jrdci’. to take notice and be euverned aceordiou.dv.
IN WITNESS \VIIERE()F. I have herein Ito Set lily hand and causes! the (reuit Seal of the State of’ Mississippi to b atfixesh.
flY fl lii (i()VPRNOR
SIiCRETi\R\’ ()F ST AlL
DONE at the Capitol, in the City a I Jackson. this the out duiv January, in thc year of our Lord two thousand and twelve, and of the two hundred and thirty-sixth year (it ’ the United States ii t A nieriea.
/ lIALEY O/wV0UR /
STATE OF MISSISSIPPI SECRETARY OF STATE’S OFFICE
DELBERT HOSEMANN SECRETARY OF STATE JACKSON, MISSISSIPPI
I, Delbert Hosemann, Secretary of State of the State of Mississippi, do hereby certify that the within and attached is a true and correct copy of
Executive Order No. 1072
OFFICIAL PARDON FOR ANTHONY MCCRAY
the original of which is now a matter of record in this office.
Given under my hand and Seal of Office this the 18th day of January, 2012
STATE OF MISSISSIPPI or I hereby certify that this is a tnw
and compkiL copy of the_paçj document ort file in this ofic. DATPs2tL._ O\2
1 BY: JKLtt,w,.1J.
This Certification Stamp kp;aces Our Previous Certification System.
STATE OF MISSISSIPPI Office of the Governor
ExE(tfIVE ORDER NO. 1072
TO \’.1I().’iI IT M.\V CONCERN:
\Vil El EA S.Anthony M .Cy, \f si5i1li I )eparinleiil til ( rrectloils No.
K7876, ts silenced ill (nose Number 1) - loO-KL3 in Pike County. Mississippi on
Anetict I-I. 20ii1, [(I a Ijib seutCHee on a cliarc oIMiirder: and.
VII-1 i;R t:.-s, Aitthoitv ’vk(ruy became a trusty and n.as translrred to the (ivernurs M:iitsioii. where lie proved 0) he a diliteiit rind it diaLd womtsmimatm: and.
NOW, THEREFORE, I, Haley Baihotti. iuveiIlor 01’111C State ol Mississippi,
titider id hv virtue or the authority eted ill me by the Constitution and Laws of Otis
State. do itenhy uratit to Antlinity MeCrIV a full. coinplIe. and LU1L’OiltlitiOn11 pirukin Im
time et,nie ;titii Conviction natuicd herein: and hcncckirih, ht:ihh he absolved from Ili letual
, li5CLftiCi1CC Of I his en lie iii Oh COiI\’ ictiOt).
I do atithorize and direct you upon receipt of this Executive Order. to take notice
id be CI)VCItted ;ieeutrCtUtUiV
IN \vIl’NI:ss WHEREOF, I hae hereunto scm itty hand nild eitl5L5l the ( rcut
al ol’th Slate itl’Mississi1ipi to be al1ieil.
l)Oi’J it (lb. Capitol, lii tilt, ( it ol tit,ksoti
this thc oill dav .1 inn us in mlii. year of 001
�’ Lord two thousand amid twelve, and ol mite tsvo httiidred tind thinmy-siNLh year of the Uititei Slates oiAit)erica.
4// / 1iALE\lfARB(’)UR
p) . THE GOVERNOR
, SlCRFFARV OF S1 A1’!
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT
JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
VS.
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; GOVERNOR PHIL BRYANT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF MISSISSIPPI; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; KATHERINE ROBERTSON; KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; JOHN OR JANE DOES 1-200
PLAINTIFF
CAUSE NO. 251-12-00033
JAN 232012 BARBARA DUNN, CIRCUITCLERK
DEFENDANTS
SECOND AMENDED VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, AND
DECLARATORY RELIEF
Plaintiff Jim Hood, Attorney General for the State of Mississippi, ex rel. the State of
Mississippi (the "State") files this Second Amended Verified Complaint for Temporary
Restraining Order, Preliminary and Permanent Injunctive Relief, and Declaratory Relief and
states:
INTRODUCTION
1. This is a civil action regarding purported pardons issued by former Governor
Haley Barbour. Some of the more than 180 pardons issued by former Governor Barbour during
his last few days in office were purportedly granted to persons convicted of felony crimes
prescribed by the laws of the State of Mississippi, but were made in violation of Section 124 of
the Mississippi Constitution. Section 124 proscribes the Governor’s power of pardon and
provides the citizens with a constitutionally protected and enforceable right to notice before a
pardon may be granted. Section 124 provides that "in cases of felony, after conviction no pardon
shall be granted until the applicant therefor shall have published for thirty days, in some
newspaper in the county where the crime was committed, and in case there be no newspaper
published in said county, then in an adjoining county, his petition for pardon, setting forth therein
the reasons why such pardon should be granted."
2. On behalf of the State of Mississippi, the Attorney General seeks injunctive and
declaratory relief against the defendants to declare null, void, and unenforceable those pardons
issued by Governor Barbour in violation of Section 124. The Attorney General also seeks further
injunctive and equitable relief requiring the defendant Christopher Epps, sued in his official
capacity as Commissioner of the Mississippi Department of Corrections, to obtain sufficient
documented proof demonstrating compliance with Section 124 before any pardons issued by
former Governor Barbour to persons currently in the custody of the Mississippi Department of
Corrections are given any legal force and effect.
PARTIES
3. Attorney General Jim Hood is the duly elected Attorney General for the State of
Mississippi, its chief legal officer, and is charged with managing the legal affairs of the State. As
the chief legal officer of the State, he brings this lawsuit according to law and equity to protect
interests of statewide and critical importance.
4. Governor Phil Bryant is the chief executive officer of the State of Mississippi and
2
former Governor Haley Barbour’s successor-in-office. Although Governor Bryant did not issue
the pardons at issue, the Governor’s Office must be a party in this case so the Court may order
effective declaratory and injunctive relief. Governor Bryant is not alleged to have committed any
unconstitutional or improper acts with respect to the granting of the pardons. 5.
Commissioner Christopher Epps is the head of the Mississippi Department of Corrections which
is charged by law with maintaining the custody of all state inmates convicted and committed to
its custody. Commissioner Epps is named in his official capacity. Commissioner Epps’ business
office is located in Jackson, Mississippi, the seat of state government in the First Judicial District
of Hinds County, Mississippi.
6. Defendant Nathan Kern is a former inmate of Mississippi Department of
Corrections. His address is currently unknown, but he may be served with process pursuant to
Miss. R. Civ. P. 4.
7. Defendant David Gatlin is a former inmate of Mississippi Department of
Corrections. His address is currently unknown, but he may be served with process pursuant to
Miss. R. Civ. P.4.
8. Defendant Charles Hooker is a former inmate of Mississippi Department of
Corrections. His address is currently unknown, but he may be served with process pursuant to
Miss. R. Civ. P.4.
9. Defendant Anthony McCray is a former inmate of Mississippi Department of
Corrections. His address is currently unknown, but he may be served with process pursuant to
Miss. R. Civ. P. 4.
10. Defendant Joseph Ozment is a former inmate of Mississippi Department of
3
Corrections. His address is currently unknown, but he may be served with process pursuant to
Miss. R. Civ. P. 4.
11. Defendant Katherine Robertson is currently in the custody of Mississippi Department
of Corrections, confined in a penal institution, and she may be served with process pursuant to
Miss. R. Civ. P. 4.
12. Defendant Kirby Glenn Tate is currently in the custody of the Mississippi
Department of Corrections, confined in a penal institution, and he may be served with process
pursuant to Miss. R. Civ. P. 4.
13. Defendant Aaron Brown is currently in the custody of the Mississippi Department of
Corrections, confined in a penal institution, and he may be served with process pursuant to Miss.
R. Civ. P.4.
14. Defendant Joshua L. Howard is currently in the custody of the Mississippi
Department of Corrections, confined in a penal institution, and he may be served with process
pursuant to Miss. R. Civ. P. 4.
15. Defendant Azikiwe Kambule is currently in the custody of the Mississippi
Department of Corrections, confined in a penal institution, and he may be served with process
pursuant to Miss. R. Civ. P. 4.
16. Defendants John and Jane Does 1-200 are presently unknown persons who are not
currently in the custody of the Mississippi Department of Corrections but were purportedly
granted pardons by former Governor Haley Barbour on or before January 10, 2012, for felony
crimes in violation of the laws of the State of Mississippi. Included among the Does are persons
who received a pardon but did not publish any notice, persons who received a pardon but
published a notice less than thirty days before the date of the pardon, and persons who received a
pardon but did not publish their notice for the required thirty day duration. These defendants are
currently identified as John and Jane Doe defendants because the facts related to whether former
Governor Barbour issued pardons to them in compliance with Section 124 of the Mississippi
Constitution are not yet filly developed. The Attorney General reserves the right to amend this
complaint to include specific individuals in place of John and Jane Does 1-200 consistent with
the Mississippi Rules of Civil Procedure.
JURISDICTION, VENUE AND JOINDER
17. This Court has jurisdiction over the subject matter and parties herein.
18. Venue is proper in the First Judicial District of Hinds County in that some or all
the defendants maintain their business offices or residences in the First Judicial District of Hinds
County, Mississippi, and/or it is the location where some or all of the acts or omissions occurred,
or where a substantial event that caused the injuries at issue occurred.
19. The defendants have been properly joined in this action because the right to relief
requested is asserted against them jointly, severally, or in the alternative, arises out of the same
transaction, occurrence, or series of transactions or occurrences, and there is at least one common
question of law or fact among the defendants.
FACTS
20. Governor Phil Bryant was elected as Governor during the general statewide
election on November 8, 2011. Governor Bryant took the oath of office, consistent with
Mississippi law, on January 10, 2012.
21. Former Governor Haley Barbour was Governor Bryant’s predecessor-in-office.
5
During Governor Barbour’s last few days of tenure in office, he issued pardons and reprieves,
and granted clemency and/or conditional suspensions of sentences to certain individuals
convicted of felonies under the laws of the State of Mississippi. A list of the Executive Orders,
dates issued, and names of the individuals to whom Governor Barbour granted pardons and
reprieves, and granted clemency and/or conditional suspensions of sentences during his tenure is
affixed hereto as Exhibit "A."
22. As indicated by Exhibit "A," on or before January 10, 2012, the date which
Governor Bryant replaced him, former Governor Haley Barbour issued executive orders granting
pardons and reprieves, granted clemency, and/or conditional suspensions of sentences to more
than 200 individuals previously convicted of crimes against the State of Mississippi.
23. Defendant Nathan Kern was convicted of the felony of robbery in Coahoma
County, Mississippi in or about 1982. Defendant Kern was serving his sentence in the custody of
the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6,
2012, former Governor Barbour issued Executive Order No. 1069 purportedly granting defendant
Kern a full, complete, and unconditional pardon for his crime. See the true and correct copy of
Executive Order No. 1069 affixed hereto as Collective Exhibit "B."
24. Defendant Kern did not have an application for the purported pardon published
for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was
committed, setting forth therein the reasons why his pardon should be granted.
25. Defendant Kern’s application for his purported pardon was first published in the
Clarksdale Press Register in Coahoma County, Mississippi on December 14, 2011.
26. Defendant David Gatlin was convicted of the felonies of murder, aggravated
.1
assault, and burglary in Rankin County, Mississippi in or about 1994. Defendant Gatlin was
serving his sentence in the custody of the Mississippi Department of Corrections prior to January
6, 2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No.
1070 purportedly granting defendant Gatlin a full, complete, and unconditional pardon for his
crimes. See the true and correct copy of Executive Order No. 1070 affixed hereto as Collective
Exhibit "B."
27. Defendant Gatlin did not have an application for the purported pardon published
for thirty days prior to January 6, 2012, in some newspaper in the county where his crimes were
committed, setting forth therein the reasons why his pardon should be granted.
28. Defendant Gatlin’s application for his purported pardon was first published in the
The Rankin Record in Rankin County, Mississippi on December 15, 2011.
29. Defendant Charles Hooker was convicted of the felony of murder in Coahoma
County, Mississippi in or about 1992. Defendant Hooker was serving his sentence in the custody
of the Mississippi Department of Corrections prior to January 6, 2012. On or about January 6,
2012, former Governor Barbour issued Executive Order No. 1071 purportedly granting defendant
Hooker a full, complete, and unconditional pardon for his crime. See the true and correct copy of
Executive Order No. 1071 affixed hereto as Collective Exhibit "B."
30. Defendant Hooker did not have an application for the purported pardon published
for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was
committed, setting forth therein the reasons why his pardon should be granted.
31. Defendant Hooker’s application for his purported pardon was first published in
the Clarksdale Press Register in Coahoma County, Mississippi on December 14, 2011.
7
.3
32. Defendant Anthony McCray was convicted of the felony of murder in Pike
County, Mississippi in or about 2001. Defendant McCray was serving his sentence in the
custody of the Mississippi Department of Corrections prior to January 6, 2012. On or about
January 6, 2012, former Governor Barbour issued Executive Order No. 1072 purportedly
granting defendant MeCray a full, complete, and unconditional pardon for his crime. See the true
and correct copy of Executive Order No. 1072 affixed hereto as Collective Exhibit "B."
33. Defendant McCray did not have an application for the purported pardon published
for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was
committed, setting forth therein the reasons why his pardon should be granted.
34. Defendant McCray’s application for his purported pardon was not published in
any newspaper prior to January 6, 2012. Upon information and belief, defendant McCray’s
application for his purported pardon is scheduled to be published in The Enterprise-Journal in
Pike County, Mississippi after January 6, 2012.
35. Defendant Joseph Ozment was convicted of the felony of murder, conspiracy, and
armed robbery in DeSoto County, Mississippi in or about 1993. Defendant Ozment was serving
his sentence in the custody of the Mississippi Department of Corrections prior to January 6,
2012. On or about January 6, 2012, former Governor Barbour issued Executive Order No. 1073
purportedly granting defendant Ozment a full, complete, and unconditional pardon for his crime.
See the true and correct copy of Executive Order No. 1073 affixed hereto as Collective Exhibit
am
36. Defendant Ozment did not have an application for the purported pardon published
for thirty days prior to January 6, 2012, in some newspaper in the county where his crime was
A
committed, setting forth therein the reasons why his pardon should be granted.
37. Defendant Ozment’s application for his purported pardon was first published in the
The DeSoto Times-Tribune in DeSoto County, Mississippi on December 13, 2011.
38. Defendant Katherine Robertson was convicted of the felony of aggravated assault
in Madison County, Mississippi in 2007. Defendant Robertson is currently serving her sentence
in the custody of the Mississippi Department of Corrections. On or about January 10, 2012,
former Governor Barbour issued Executive Order No. 1193 purportedly granting defendant
Robertson a full, complete, and unconditional pardon for her crime. See the true and correct
copy of Executive Order No. 1193 affixed hereto as Collective Exhibit "B."
39. Defendant Robertson did not have an application for the purported pardon
published for thirty days prior to January 10, 2012, in some newspaper in the county where her
crime was committed, setting forth therein the reasons why her pardon should be granted.
40. Defendant Robertson’s application for her purported pardon was first published in
The Clarion-Ledger in Hinds County, Mississippi on January 8, 2012.
41. Defendant Kirby Glenn Tate was convicted of the felonies of two counts of
possession of marijuana with intent to distribute, possession of oxycodone, and delivery of
marijuana in Lauderdale County, Mississippi in 2003 and 2004. Defendant Tate is currently
serving his sentence in the custody of the Mississippi Department of Corrections. On or about
January 10, 2012, former Governor Barbour issued Executive Order No. 1221 purportedly
granting defendant Tate a full, complete, and unconditional pardon for his crimes. See the true
and correct copy of Executive Order No. 1221 affixed hereto as Collective Exhibit "B."
42. Defendant Tate did not have an application for the purported pardon published for
thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were
committed, or in an adjoining county, setting forth therein the reasons why his pardon should be
granted.
43. Defendant Tate’s application for his purported pardon was first published in the
Meridian Star in Lauderdale County, Mississippi on December 14, 2011.
44. Defendant Azikiwe Kambule was convicted of the felonies of armed carjacking
and accessory after the fact to murder in Madison County, Mississippi in 1997. Defendant
Kambule is currently serving his sentence in the custody of the Mississippi Department of
Corrections. On or about January 10, 2012, former Governor Barbour issued Executive Order
No. 1281 purportedly granting defendant Tate a full, complete, and unconditional pardon for his
crimes. See the true and correct copy of Executive Order No. 1281 affixed hereto as Collective
Exhibit "B."
45. Defendant Kambule did not have an application for the purported pardon
published for thirty days prior to January 10, 2012, in some newspaper in the county where his
crimes were committed, or in an adjoining county, setting forth therein the reasons why his
pardon should be granted.
46. Defendant Kambule’s application for his purported pardon was published in the
Madison County Herald in Madison County, Mississippi on November 3, 2011; November 10,
2011; November 17, 2011; and November 24, 2011, which is less than thirty days.
47. Defendant Joshua L. Howard was convicted of the felony of statutory rape in
Hinds County, Mississippi in 2009. Defendant Howard is currently serving his sentence in the
custody of the Mississippi Department of Corrections. On or about January 10, 2012, former
10
Governor Barbour issued Executive Order No. 1149 purportedly granting defendant Howard a
full, complete, and unconditional pardon for his crimes. See the true and correct copy of
Executive Order No. 1149 affixed hereto as Collective Exhibit "B."
48. Defendant Howard did not have an application for the purported pardon published
for thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were
committed, or in an adjoining county, setting forth therein the reasons why his pardon should be
granted.
49. Defendant Howard’s application for his purported pardon was first published in
The Clarion Ledger in Hinds County, Mississippi on November 29, 2011; December 6, 2011;
December 13, 2011; and December 20, 2011, which is less than thirty days.
50. Defendant Aaron Brown was convicted of the felonies of murder in Hinds
County, Mississippi in 1997 and possession of a concealed weapon and possession of controlled
substances in Hinds County, Mississippi in 1990. Defendant Brown is currently serving his
sentence in the custody of the Mississippi Department of Corrections. On or about January 10,
2012, former Governor Barbour issued Executive Order No. 1274 purportedly granting defendant
Brown a fill, complete, and unconditional pardon for his crimes. See the true and correct copy
of Executive Order No. 1274 affixed hereto as Collective Exhibit "B."
51. Defendant Brown did not have an application for the purported pardon published
for thirty days prior to January 10, 2012, in some newspaper in the county where his crimes were
committed, or in an adjoining county, setting forth therein the reasons why his pardon should be
granted.
52. Defendant Brown’s application for his purported pardon was first published in
11
The Clarion Ledger in Hinds County, Mississippi on September 9, 2011; October 6,2011;
October 13, 2011; and October 20, 2011, which is less than thirty days.
53. Each of the purported pardons described above was issued by former Governor
Barbour at the Capitol in Hinds County, Mississippi. See true and correct copies of Executive
Orders affixed hereto as Collective Exhibit "B."
COUNT ONE DECLARATORY JUDGMENT BASED ON
VIOLATION OF THE MISSISSIPPI CONSTITUTION
54. The Attorney General incorporates the previous paragraphs by reference herein.
55. Section 124 of the Mississippi Constitution states:
In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
56. Pursuant to the express provisions of Section 124, no person convicted of a felony
may be pardoned by the Governor unless, as a condition precedent, the applicant’s petition for
pardon is published by newspaper for thirty days prior to issuance of the pardon in the county
specified therein.
57. Defendants Kern, Gatlin, Hooker, McCray and Ozment were convicted of felonies
under the laws of the State of Mississippi and failed to comply with the publication requirement
12
of Section 124 prior to former Govern Barbour’ s issuance of Executive Orders 1069, 1070, 1071,
1072 and 1073 on January 6, 2012.
58. Defendants Brown, Howard, Kambule, Robertson and Tate were convicted of
felonies under the laws of the State of Mississippi and failed to comply with the publication
requirement of Section 124 prior to former Governor Barbour’s issuance of Executive Orders
1274, 1281, 1149, 1193 and 1221 on January 10, 2012.
59. All of the aforementioned Executive Orders and any others issued by former
Governor Barbour to persons convicted of felonies who have failed to comply with the express
publication requirement of Section 124 are invalid as in violation of the Mississippi Constitution.
60. The Court should thus enter a declaratory judgment pursuant to Miss. R. Civ. P.
57 declaring that Executive Orders 1069, 1070, 1071, 1072, 1073, 1274, 1281, 1149, 1193, and
1221 are void ab initlo and have no legal force or effect,
COUNT TWO INJUNCTIVE RELIEF BASED ON
VIOLATION OF THE MISSISSIPPI CONSTITUTION
61. The Attorney General incorporates the previous paragraphs by reference herein.
62. Temporary, preliminary, and permanent injunctive relief against the defendants
pursuant to Miss. R. Civ. P. 65 and based on Section 124 of the Mississippi Constitution is
appropriate because the Attorney General can demonstrate success on the merits, there is a
significant threat of irreparable injury, the threat of irreparable injury outweighs any possible
threat to defendants, and injunctive relief is in the public interest.
63. The Court should grant injunctive relief specifically including, but not limited to,
forever enjoining defendants from utilizing or benefitting from any of former Governor
13
Barbour’s Executive Orders declared null and void in violation of Section 124 of the Mississippi
Constitution.
64. Defendant Mississippi Department of Corrections should be required to ascertain
the validity of any and all individuals’ compliance with Section 124 who have been issued a
purported pardon by former Governor Barbour, and present sufficient documented proof of
compliance to the Attorney General and the Court before any of the pardons issued by former
Governor Barbour on or after January 6, 2012 can be given any legal effect.
65. Expedited temporary, preliminary, and/or permanent injunctive relief is
appropriate as any past act of the defendants giving legal effect to any pardons not issued in
compliance with Section 124 has created a risk that non-compliant individuals have been
improperly released from custody which constitutes exigent circumstances.
66. Further, such expedited relief is appropriate as any future act of the defendants
giving legal effect to any purported pardons not issued in compliance with Section 124 would
create a risk that non-compliant individuals would be improperly released from custody which
constitutes exigent circumstances.
FOR THE REASONS SET FORTH ABOVE, plaintiff Jim Hood, Attorney General for
the State of Mississippi, ex rel. the State of Mississippi respectfully requests that the Court grant
the following relief:
A. A declaratory judgment pursuant to Miss. R. Civ. P. 57 providing that Executive
Orders 1069, 1070, 1071, 1072, 1073, 1192, 1274, 1281, 1149, and 1221 issued by former
Governor Barbour in violation of Section 124 are a nullity, void, and unenforceable;
B. A temporary, preliminary, and/or permanent injunction pursuant to Miss. R. Civ.
14
P. 65 requiring the defendant Mississippi Department of Corrections to obtain and provide
plaintiff and the Court documented and sufficient proof consistent with Section 124 of the
Mississippi Constitution from any and all persons convicted of a felony, and to whom a pardon
was issued by former Governor Barbour,
C. A temporary, preliminary, and/or permanent injunction pursuant to Miss. R. Civ.
P. 65 requiring the Mississippi Department of Corrections be prohibited from releasing from
custody defendants Brown, Kambule, Howard, Robertson, and Tate unless and until the Court
determines, based upon documented and sufficient proof, that their pardons were issued in
compliance with all of the requirements of Section 124;
D. An order requiring defendants Kern, Gatlin, Hooker, McCray, and Ozment to
appear before this Court at any hearing pertaining to a temporary restraining order, preliminary
injunction, and/or hearing on the merits at a date certain.
E. A temporary restraining order and preliminary injunction requiring defendants
Kern, Gatlin, Hooker, McCray, and Ozmet to contact the Mississippi Department of Correction’s
Jackson office (or other office designated by the Department and approved by the Attorney
General) every 24 hours to provide accurate information on their exact locations and any plans to
travel beyond their home county until such time as the Court may award permanent injunctive
relief on the merits; and
F. All other and further extraordinary equitable, declaratory, and/or injunctive relief
as permitted by law as necessary to assure that plaintiff has an effective remedy; and
G. For such other and further relief, as the Court deems just and proper, to which
plaintiff may be entitled.
15
Respectfully submitted, this the 23d day of January, 2012.
BY: JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI
~-Itw ’!tn ~a~W-2~ffl -
ORNEY GENERAL BRIDGETFE WIGGiNS, MSB No. 9676 ALEXANDER KASSOFF, MSB No. 103581 SPECIAL ASSISTANT ATTORNEYS GENERAL
Office of the Attorney General Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680 Facsimile: (601) 359-2003
16
Verification
Personally appeared before me, Special Assistant Attorney General Bridgette Wiggins, an
adult resident citizen of the State of Mississippi, and hereby makes this affidavit, stating as
follows:
I hereby certify that the information contained in this complaint filed on January 18,
2012, and to which this affidavit is fixed, is true and correct to the best of my knowledge
information and belief.
DATED this the 23d day of January, 2012.
Sworn to and subscribed before me, this the 23d day of January, 2012.
..�t stit�Øe...
My Comnussio’.X fr4 DIANA WARE
. .CommissIon Expires/ �..
July 29,2013 .
Notary Public
17
Certificate of Service
This is to certify that I, Bridgette Wiggins, Special Assistant Attorney General for the
State of Mississippi, have caused to be served the foregoing Second Amended Verified
Complaint to the following individuals and in the manner specified below:
Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds county Courthouse Jackson, MS 39201
Governor Phil Bryant Office of the Governor of Mississippi P.O. Box 139 Jackson, MS 39205
Thomas M. Fortner Attorney at Law Erik M. Lowrey, P.A. 525 Corinne Street Hattiesburg, MS 39401
Richard A. Filce Attorney at Law Erik M. Lowrey, P.A. 525 Corinne Street Hattiesburg, MS 39401
Alison Oliver Kelly Attorney at Law Alison Oliver Kelly, PLLC P.O. Box 1644 Jackson, MS 39215
Christopher Epps, Commissioner Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 and via electronic mail to [email protected]
18
Joseph Ozment At this time, the State of Mississippi has been unable to locate and serve Joseph Ozment with a complaint and summons. The State will endeavor to serve Ozment as required by Rule 4.
Katherine Robertson will be served via hand delivery at the January 23, 2012 hearing
Kirby Glenn Tate will be served via hand delivery at the January 23, 2012 bearing
Aaron Brown will be served via hand delivery at the January 23, 2012 hearing
Joshua L. Howard will be served via hand delivery at the January 23, 2012 hearing
Azikiwe Kabule will be served via hand delivery at the January 23, 2012 hearing
DATED this the 23d day of January, 2012.
19
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI
ank
CLE1 JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
VS. CIVIL ACTION NO. 251-12-00033 dY
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY MCCRAY, AND JOSEPH OZMIET, AND DOES 1-200 DEFENDANTS
ORDER OF RE-ASSIGNMENT
THIS CAUSE came on to be heard on the motion of the Plaintiff for a Temporary
Restraining Order and Injunctive Relief. The Court, having first discussed same with the original
assigned judge, Judge Jeff Weill who was trying a criminal trial in the 2 d Judicial District of
Hinds County, finds the motion is well taken and should be granted.
IT IS HEREBY ORDERED AND ADJUDGED, that the above styled and numbered
cause is hereby reassigned to Judge Tomie T. Green.
SO ORDERED this the day of . 1
2012.
<&, 4e4~ TOMTE T. GREEN, SENIOR JUDGE HINDS COUNTY CIRCUIT COURT
1 Emergency Hearing, 1-11-12
1 IN THE CIRCUIT COURT OF THE FIRST JUDICIAL
2 DISTRICT OF HINDS COUNTY, MISSISSIPPI
3
4 JIM HOOD ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL.
5 THE STATE OF MISSISSIPPI PLAINTIFF,
6
7 VS.
8 CIVIL ACTION NO: 251-12-00033 CIV
9 CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER
10 OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN,
11 CHARLES HOOKER ANTHONY MCCRAY, AND JOSEPH OZMET, AND DOES 1-200
12 DEFENDANTS.
13 14 * * * * * * * * * * * * * * * *
15 HEARING HELD BEFORE THE HONORABLE TOMIE T. GREEN IN THE ABOVE-STYLED CASE ON WEDNESDAY,
16 JANUARY 11, 2012 AT THE HINDS COUNTY 17 COURTHOUSE, JACKSO, MISSISSIPPI.
* * * * * * * * * * * * * * * * 18
19
20 APPEARANCES:
91 -TTflINV (MIIAI ATM Hflflfl
L_. L I I LI I I ’I L_ I LA L_ ’I L. (\M L.. QI I I I I L/ L/ L/
22 Representing State of Mississippi
SPECIAL ASSISTANT ATTORNEY GENERAL
23 DAVID SCOTT, Representing Department
24 of Corrections
25 ALSO PRESENT: Assistant Attorny General
26 Bridgette Wiggns
Deputy Attorney General
27 (Jnetta Whitley
28 REPORTED BY: ESTELLA WREN, CSR #1141
29 Official Court Reporter
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Certificate ................................. 39
Style, Number & Appearances ................. 1
Special Hearing ............................. 6
Exhibits .................................... 3
Index ....................................... 2
TABLE OF CONTENTS
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1, Document, Copyies of Newspaper ........ 14
2, Letter, Southern Sentinel ............. 16
3, Document, Suzanne Singletary .......... 17
4, Pardons ............................... 18
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Emergency Hearing, 1-11-12
THE COURT: For the record, this is
cause 12-33 before the Circuit Court of
Hinds County. It is an emergency matter
styled Jim Hood, Attorney General for the
State of Mississippi versus Chris Epps in
his capacity as Commissioner of the
Mississippi Department of Corrections, et
a]
The proceeding is deemed by the top
law enforcement entity for the state to be
of an emergency nature needing this
court’s immediate attention. As senior
judge and in the absence of the assigned
judge, I’m ready now to proceed with the
hearing.
Attorney General Hood, I’ve not had
an opportunity to review all of the case
law, but the court will make a
determination of whether an injunction is
appropriate and thereafter set a
preliminary hearing if it deems so. You
may proceed at this time.
And counsel, if you would, identify
the persons before the court for the
record,
ATTORNEY GENERAL HOOD: Yes, ma’am.
I have with me Bridgette Wiggns, an
assistant attorney general. Onetta
Whitley is the deputy attorney general.
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Emergency Hearing, 1-11-12
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And David Scott is a special assistant
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attorney general assigned to the
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Department of Corrections. And so he’s
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representing the Department of
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Corrections.
6
THE COURT: And have you had an
7
opportunity to review the petition?
8
MR. SCOTT: I’ve briefly reviewed it.
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THE COURT: And in terms you agree
10
that this is an emergency matter needed to
11
be addressed by the court?
12
MR. SCOTT: Yes, ma’am.
13
THE COURT: Okay. You may proceed,
14
General Hood.
15
ATTORNEY GENERAL HOOD: Your Honor,
16
for the record I’m sure that the court is
17
aware of what has occurred.
18
THE COURT: Yes, sir.
19
ATTORNEY GENERAL HOOD: Governor
20
Barbour issued some 216, I believe,
21 pardons in his last hours of services as
22
governor. Section 124 of the Mississippi
23
Constitution provides that before a pardon
24
may be granted that the convict, the
25
applicant for the pardon, has to publish
26
in the local paper for a 30-day period.
27
What we have found is numerous
28
situations where there was no publication
29
at all. We found situations where there
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was some publications but not a full
30 days. And so we’re having to go back
through all of these to see if these
pardons are actually valid. It’s our
position that Section 124 expressly
provides that the pardon can’t be granted
until this publication has been done. And
we take the position that it was the
Governors duty before he signed those
pardons to determine that the publications
were done. We were prevented all day long
by counsel for former Governor Barbour
from getting access to his files. I
finally called Governor Bryant over an
hour ago, and he ordered them to provide
us with the files, so we’ve just now
gotten them. Many of them had nothing in
them about any kind of publication. Some
of them did.
So the position of the state is fhif - - vrl T ’ ic +-:a1 [Intl fc flrmm c-c--i r-vr
DOIL, UII’J .1. VI.- ,U \’-.-L ,L/ ’j’JHIIII
Epps. David Scott is assigned -- he’s
assistant attorney general, but he’s in
here in his independent authority in
representing the Department of
Corrections. But Commissioner Epps does
not want to release prisoners that would
be released on an invalid pardon and then
we have to go back and try to track them
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Emergency Hearing, 1-11-12
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down.
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THE COURT: Counsel, have you
3
notified the current governor of your
4
intent to come before the court for the
5
information?
6
ATTORNEY GENERAL HOOD: Yes, ma’am.
7
I notified Governor Bryant that I would
8
have to name him in the suit if he didn’t
9
order the attorneys for former Governor
10
Barbour to provide us with those records
11
because we would have to have an order to
12
get them, so he’s well aware. So we took
13
his name off of the complaint; however, in
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the complaint we are requesting that the
15
court issue an order that we get all the
16
records because, apparently, we hadn’t
17
gotten all the records that Governor
18
Barbour had in his possession regarding
19
these pardons, because we just want to see
20
if there is some evidence in the state’s 91 -f41rc fkf ri,k14r-4c-v- ,: mt-H- Q,f £_ L
CO .,IIUL, U F.JLS4 LJI LUI’JlI VYU5) IIlC. L)LAL
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we’ve checked with a lot of newspapers, we
23
have statements, we have affidavits, our
24
investigators, consumer protection, public
25
integrity -- they’re calling all these
26
local newspapers to see if these
27
publications have been met. We found that
28
some hadn’t published anything, some have
29
been up there in the last couple of weeks.
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Emergency Hearing, 1-11-12
It’s our position they even though
they may have published -- started
publishing one case, for example, was
December 15th began the publication. That
is the murder from out in Rankin County.
THE COURT: Do you have a list of
those that you’re --
ATTORNEY GENERAL HOOD: Yes, ma’am.
Those are the named defendants. This
David Gatlin is who I’m talking about with
the murder from Rankin County.
THE COURT: Okay. But that’s not the
only one.
ATTORNEY GENERAL HOOD: No, ma’am.
There are four that have been convicted of
murder.
THE COURT: And there was a total
number?
ATTORNEY GENERAL HOOD: One that was
convicted of robbery. I believe he’s a t.lk-4-
IIUL) I UU I U I CIIUCI � VVIIQL ’/V U IU VV WtIIL
out to the Rankin Record, for example, and
we found that inmate David Gatlin, who is
one of these named parties who was
convicted of murder and aggravated
assault, his run from December 15th to
January 5th, which by my calculations even
giving him the first day and the last day,
I believe it was 21 days -- would not meet
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the 30-day requirement. -
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THE COURT: Okay.
3
ATTORNEY GENERAL HOOD: Moreover the
4
pardon was. granted On January 6th on all
5
five of these individuals, and they were
6
released Sunday. So we’re asking that --
7
and I’ll go through the rest of this list
8
in a second, but first we’re asking that
9
the Department of Corrections have an
10
order to protect them to cease handling
11
the pardons of those who are incarcerated
12
until we can sort out whether publication
13
was done.
14
Secondly, for these individuals we’re
15
asking the court as part of it’s
16
injunctive powers to order that they
17
immediately report to the Department of
18
Corrections and that they --
19
THE COURT: That is the named
20
defendants, Kern, Gatlin, Hooker, McCray
21
if æ7fl1tf7
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ATTORNEY GENERAL HOOD: Yes, ma’am.
23
THE COURT: Okay.
24
ATTORNEY GENERAL HOOD: We looked,
25
for example, on inmate Charles Hooker.
26
His petition for pardon notice was placed
27
in the Clarksdale Press Register, which is
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a twice weekly paper. It was scheduled to
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run December 14th through January 4th of
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Emergency Hearing, 1-11-12
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this year, which, there again, we believe
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does not comply with the requirements of
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the Constitution that it run for 30 days.
4
There is an inmate, Nathan Kern. He
5
petitioned for pardon, notice was placed
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in the Clarksdale’s Press Register as well
7
to run December 14 through January 4th.
8
And then lastly -- well, there are two
9
more actually. Inmate Anthony, McCray,
10
M-c-C-r-a-y. His petition for pardon
11
notice was placed in the Enterprise
12
Journal scheduled to run December 12th
13
through January 10th. And, lastly, is
14
inmate Joseph Ozmet, 0-z-m-e-t. The
15
petition for pardon notice was placed in
16
the DeSoto Times Tribune, and it was
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scheduled to run December 13th through
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January ’5th. So it’s our position that
19
these individuals that we have named in
20
this complaint should be served and 21
ran iji r’cr t immcr1 - +n I i r anny’+ t fkc I L UI I I I LI U Li I 11111 L LA I LI I, L- I J I L V LA I U U Li U I I
22
Department of Corrections, and we ask that
23
the court set a hearing as early as
24
possible to have them come in and show
25
cause or put on any proof that they’ve had
26
of publication.
27
Your Honor, in all fairness to these
28
individuals, it could be that some may
29
have partitioned Governor Finch, for
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Emergency Hearing, 1-11-12
example, if they’re murderers, they’ve
been in a long time. I don’t know if any
of this has occurred, but they could come
in and show something, but we believe our
proof is sufficient to this point to get a
preliminary injunction. For example, they
may have published back then and they may
be able to come in and show.
THE COURT: Have all these persons
been released already to your knowledge?
ATTORNEY GENERAL HOOD: Yes, ma’am.
They were released last Sunday. And what
scares me and what is such a danger right -.
THE COURT: And what was the date of
last Sunday? Was that the 8th?
MR. SCOTT: The 8th I think it was.
ATTORNEY GENERAL HOOD: January 8th.
And they were released, Sunday -- is that
right, David? MDçflTT. Vc tIl\. J � I
THE COURT: Now they were released
Sunday. Is that the date of the pardon?
ATTORNEY GENERAL HOOD: The pardon
was January 6th.
THE COURT: Okay.
ATTORNEY GENERAL HOOD: But they may
be able to come in and show some
publication, but what our research has
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Emergency Hearing, 1-11-12
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shown to this point, I mean, it just hit
us last night. What I’m afraid of if we
don’t put some requirements on them to
report, they’re going to flee, or worse
yet, say if I’m going back to finish a
life sentence, I’m going to kill somebody
else. And that’s why we think this is
worthy of some emergency powers of the
court to enjoin and require them to come
before the court and to immediately report
to the Department of Corrections. Our
officers would go out and serve them if we
can locate them. Because when they leave
MDOC on a pardon, there are no strings.
mean, we’re going to have to go through
the records to find family and try to go
serve them tonight or tomorrow if you
issue this order. So we want to just get
those two things done.
And I think by the time you -- if you
C’ C% + 1� k 4 k ,- - 4 v g’- ,- , -1� i.., _C ,-’ I, , -. 1 A k
L.H t HQI IH IICAL, VVCI\, WC 311’JUIU U
able to have completed -- I’ve engaged all
the district attorneys in the state, local
law enforcement, sheriffs, to go to these
local papers and lets see if they’ve ever
published at any time from the crime
forward.
THE COURT: So you’re not arguing
that the governor has the authority. Your
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argument is that they are condition
precedent to him exercising that
authority. And from what I’m looking at
under Section 124 under Article 5, it says
it shall be published for 30 days in some
newspapers in the county, and where there
is no county newspaper, in an adjoining
county. And that publication has to say
why the applicant believes he’s entitled
to the pardon.
ATTORNEY GENERAL HOOD: Yes, ma’am.
What we’re saying is that he can’t even
issue it. Because it says no pardon --
THE COURT: -- shall issue.
ATTORNEY GENERAL HOOD: Shall issue.
THE COURT: Correct.
ATTORNEY GENERAL HOOD: In other
words, he has got to be assured that the
publication has occurred.
THE COURT: So you don’t have the I 4 ,- n 4- 4 n In n tn A -f In in , in in 4- in v-i in 4 rI ri 4- In n 4- in
pub aiiuit and i.Iicy vvuri l il UV u L111 L, 1.,’.)
you.
ATTORNEY GENERAL HOOD: Well, we just
got it a little bit ago, but what we have
already found in those files is a lot of
them don’t have any information about any
publication. The governor just signed
them without regard.
THE COURT: Okay. Do you have that
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ATTORNEY GENERAL HOOD: I have some
3
exhibits that I’d like to introduce that
4
shows some of the publications that we
5
have done.
6
THE COURT: Okay.
7
ATTORNEY GENERAL HOOD: As far as the
8
governor’s files, we have not completed
9
that. We went around because they
10
wouldn’t give them to us.
11
THE COURT: Why don’t you at this
12
time ask Ms. Wren to mark those documents
13
as exhibits to your petition, and then you
14
can relate to the court by document what
15
you have before us.
16
ATTORNEY GENERAL HOOD: Your Honor,
17
at this time we would submit for
18
identification purposes a -- I suppose we
19
can just move to introduce them, though,
20
since we’re not dealing with a jury. I 01
+k n 4-,-,-.. Li. LflII LII U/ LUtJ UII
22
THE COURT: You can. You can move to
23
have them admitted as exhibits to your
24
petition.
25
ATTORNEY GENERAL HOOD: This is a
26
five-page document that contains copies of
27
the newspapers that we would move to
28
introduce and the cover letter from the
29
Mississippi Department of Corrections.
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THE COURT: If you’ll do that one as
State’s Exhibit 1.
(STATE’S EXHIBIT NO. 1 MARKED AND
ADMITTED)
ATTORNEY GENERAL HOOD: The second
document that I would move to introduce is
a two-page exhibit. It is a letter from
the office manager and the general manager
of the Southern Sentinel. It comes out of
Ripley, but that’s the Benton County
Newspaper in which it mentions two of
those on this list. It’s not any of these
five that we’ve named, but it’s just an
example of, you know -- there are two on
the list, one of them is Clinton Moffitt.
That’s one of those from Benton County
that we convicted of voter fraud, our
office did recently.
In this letter she states that he did
publish, but it didn’t start until luy’, L.*k -,-c *-.4- ’)fll’) -+’ uui,uui j ..ii ul t,1113 jtQi , UL(, UHu I 3
supposed to be published -- January 5;
January 19th to January 26th. Obviously,
that does not meet the 30-day period prior
to the issuance of the pardon.
This letter also contains a statement
regarding another person who was pardoned,
Steven Thompson. And this letter states
there is no -- Mr. Thompson has not
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Emergency Hearing, 1-11-12 16
1
published anything. So that’s just an
2
example of what we found in going through
3
these 200 something pardons that some have
4
run out and tried to publish, and it
5
hadn’t met the 30-day deadline. And then
6
there are others, some hadn’t published at
7
all. And I think that’s the pattern that
8
we’re going to find throughout this from
9
what we’ve already seen. So I would move
10
that we introduce this two-page letter as
11
Exhibit 2.
12
THE COURT: It will be admitted as an
13
exhibit to your petition as State’s
14
Exhibit No. 2.
15
(STATE’S EXHIBIT NO. 2 MARKED AND
16
ADMITTED)
17
THE COURT: In terms of the persons
18
who are named besides Mr. Epps, did you
19
check to see whether the persons that did
20
publish were within the counties where the 91 c’v’ -IyY,r /V% -.,4 -.r --, vi - tnr, �� 4� 0
L1 1111z: tJt.UI I CU UI JIIIC QUJU III IH uuiIiy
22
Has that been verified as well?
23
ATTORNEY GENERAL HOOD: Yes, ma’am.
24
The first one that we introduced on the
25
first page right here, it lists when we
26
went to the county in Rankin, the Rankin
27
Record -- did she give you a copy of that
28
first one?
29
THE COURT: Yes. That’s your State’s
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Exhibit 1.
ATTORNEY GENERAL HOOD: Okay. And
State’s Exhibit 1, that first paragraph as
posed, it states on each one of these
named defendants like David Gatlin, it
says that, you know, we went to the Rankin
Record and that he did run the publication
but it only ran from December 15th through
January 5th. And it’s our position that
he should have to come in and show cause
as to how that actually met the 30-day
requirement. And the rest of them are
listed right under that as to what, you
know, we went to those particular counties
and checked on those five who were just
released December 6, four of whom were
murderers and one habitual arm robbery.
So those are the ones that we think is a
danger to the public.
I want to move to introduce this T-f- - -’ 1 0
uuuIIttIIL. i a 1L - pa’Je uu’..uuitii, iuui
Honor, that we would move to introduce as
States Exhibit 3, and it contains this
that I’ve just stated to the court the
fact that we have checked with this
publication. This information actually
came from the Department of Corrections.
THE COURT: Okay. This is the
document that has Suzanne Singletary’s
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Emergency Hearing, 1-11-12 18
1 name at the top and a note saying to
2 General Hood from David Scott?
3 ATTORNEY GENERAL HOOD: Yes, ma’am.
4 THE COURT: Okay.
5 (EXHIBIT NO. 3 MARKED AND ADMITTED)
6 ATTORNEY GENERAL HOOD: Your Honor,
7 we have a fourth exhibit that I would move
8 to introduce, and it is a printout that we
9 have received from the Clarion Ledger of
10 Hinds County convictions, and the Clarion
11 Ledger has given us this showing the dates
12 of publication. As you see, the first
13 one, Kenneth Carver Pardon notice ran from
14 1-12 to 2-2 of 2012. So they’re just now
15 trying to run them.
16 THE COURT: After the pardon?
17 ATTORNEY GENERAL HOOD: Yes, ma’am.
18 And that’s the problem. They should have
19 had it done before or it’s invalid. And
20 these are just examples of what we’re 01 4-- £4.-,-1 --C -l--L-4. �,L-1,- ’)nl\ C- LI. ’JU IH’J LU. ’ L’IU UI LU! W!!U! t £.UU. .J’J when
22 we come back to court we’re going to be
23 moving to set aside or ask the court to
24 hold null and void all these pardons
25 because they have not met the
26 Constitutional requirements. I move to
27 introduce this list as Exhibit 4.
28 THE COURT: And this is Clarion
29 Ledger data?
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Emergency Hearing, 1-11-12
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ATTORNEY GENERAL HOOD: Yes, ma’am.
(EXHIBIT NO. 4 MARKED AND ADMITTED)
ATTORNEY GENERAL HOOD: Your Honor,
that last exhibit is just an example of
what we’ve already found in our checks of
these people. The governor did not obtain
these documents of publication and he had
a duty to before he granted them. But
let’s assume that he did it anyway and
that they published at some other time.
We have gone back in our spot checks in
this whole list we have right there, I
think it’s clear evidence that none of
these people had published, very few are
going to actually meet that requirement.
So what we’re asking is that the court
order MDOC not to turn any more out until
we’re able to determine those that are
already incarcerated or still
incarcerated. And we have been advised 4- In n 4- -4- 1 r. a n cn r c- en n-i en ) 1 en vi c en r vi c f LIIG, 1.1II QI C 3L)144C -JL) UI .)U
more. Do we actually know -- that’s what
the governor’s office allegedly told us.
We don’t know how many are incarcerated
are actually on this list. MDOC is still
trying to sift through it. This list that
the governor sent out, I suppose I should
introduce that list.
THE COURT: I have that. It’s
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Emergency Hearing, 1-11-12
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attached -- as Exhibit A?
ATTORNEY GENERAL HOOD: Okay. That
list is what was delivered to MDOC, so
they got to go through and figure out what
the convict’s number is, what their county
of conviction is so that they can se.nd out
notices to the sheriff. David can speak
more as to what their duties are, but it’s
quite a bit. I think it’s at least going
to take two days to process that. But if
you’ll look on that list that’s attached
to it, about ten down you start seeing
those five that were named. You see the
January 6th.
THE COURT: I do.
ATTORNEY GENERAL HOOD: That’s the
five that we’re looking at that were just
released. And we’re trying to, number
one, prevent them from releasing any more;
number two, let’s bring these in and see 4 4 4- hl l r r\ 4- m Y V’ C\
014 1- k -1- -I- k
I LCJ VC D’JIII’ fJI JI IIUL.
actually met the publication requirement.
And then as to these others, we’re going
to have to try to notice them.
I’d like to take the position that,
you know, they got a duty to come forward.
But in all fairness I think they have a
valid pardon until we prove otherwise.
And so I guess what’s going to have to
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Emergency Hearing, 1-11-12
21
happen is our office is going to have to
run all these publications and put on and
try to prove a negative, you know, that
nothing has occurred. But we’re going to
scramble and do that as soon as possible.
THE COURT: Okay. From what I
gather, and I guess maybe I should be
talking with the attorney for MDOC, is
there some record or documentation that’s
kept in the regular order or course of
business for the governor’s office as
public record that should be available to
the attorney general to your knowledge?
MR. SCOTT: Your Honor, to the
knowledge of the Department of Corrections
they don’t know what records are kept by
the governor’s office.
THE COURT: When were you notified
that the publications had been met so as
to release anyone?
MP c lAj rnTT. fh rn’f tr thc P I 4 -WWI I 4 V I I I I
entire list, the Department has never been
notified that there’s been notifications
published. With respect to the five
inmates that were released on the 8th, the
Department was notified in early December,
I want to say sometime December 8th or 9th
that they had intended to pardon these
individuals, and there was discussion
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Emergency Hearing, 1-11-12
22
1 between the Department and the governor’s
2 office about the publication at that time,
3 and the Department was instructed to go
ahead and publish notification on the
5 individuals who were still in custody.
5 THE COURT: How many of them were
7 still in custody at that time if you
3 recall?
9 MR. SCOTT: The five that were
1
released on Sunday.
1 1 THE COURT: Okay.
1 2 MR. SCOTT: There were a number of
1 3 other individuals that -- I think about
1
four other individuals that they were
1 5 notified, and I think that’s on one of
1 5 your exhibits where Suzanne Singletary’s
1 7 name is at the top. There are four names
1 3 toward the bottom of that that were not in
1 9 custody at that time. Those individuals
2 D were contacted by the Department and told
2 I that they had an obligation to provide ;4
2 2 publication at that time.
2 3 THE COURT: So they were notified by
2 4 the Department that they needed to publish
2 5 themselves.
2 6 MR. SCOTT: That’s correct.
2 7 THE COURT: As the applicants. Where
2 B does that copy back to? I’m like the
2 9 General, I hadn’t been in court to figure
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Emergency Hearing, 1-11-12 23
1
out or find how publications work except I
2
know that when it’s required the newspaper
3
usually sends a clipping back and it’s put
4
in a file somewhere in the court. How
5
does that work when it is a defendant who
6
either has served time or has not
7
completed their time?
8
MR. SCOTT: With respect to the five
9
inmates that the Department sent notice to
10
the newspapers, the newspapers will send
11
an invoice to the Department to pay for
12
it, and that’s put into the file. Not
13
necessarily the inmate’s file, but it’s
14
kept in a file at the Department to show
15
that the publication had in fact ran.
16
THE COURT: Does it have the little
17
clipping, they used to tape that you’re
18
aware of?
19
MR. SCOTT: Your Honor, it does not.
20
Well, let me look. In fact, I can say
that the Department has not received an
22
invoice from all five of those. They have
23
received an invoice for three of the five.
24
And just looking through it --
25
THE COURT: Then how does the
26
Department know whether to release?
27
MR. SCOTT: Oh, I’m sorry. It does.
28
Well, the Department, Your Honor, the
29
Department is following the orders that
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Emergency Hearing, 1-11-12 24
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they receive from the Governor when they
receive a pardon, you know.
THE COURT: Can you show it to me?
I’m just -- I’ve never had one come to me.
What does the Governor say to the
Commissioner that authorizes the
commissioner or does he just accept the
word of the Governor that the conditions
have been met?
MR. SCOTT: The Department, when the
Department receives a certificate of
pardon --
THE COURT: Yes, sir.
MR. SCOTT: They can make the
assumption that all the conditions have
been met.
THE COURT: That all has been met.
Because at that point it’s your
understanding that that’s taken care of by
the person who signs the commission.
fl(TT. Tkf ’
’c vc’f II\ � � IU ’., .J ..….JI I L\_. I.,
THE COURT: The Governor’s Office.
MR. SCOTT: That’s correct.
THE COURT: Okay. And did you have
that on every one that you had pardoned,
the individuals that are listed as
defendants?
MR. SCOTT: We do not have notice
that --
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THE COURT: I mean, do you have a
pardon, certificate or whatever it is you
have to have?
MR. SCOTT: Yes, Your Honor. I think
everybody on this -- well, let me back up
because the fist --
THE COURT: I just want to see what
it looks like.
MR. SCOTT: I don’t have it with me.
I don’t have a certificate with me.
THE COURT: Okay.
MR. SCOTT: They have been filed with
the Secretary of State’s Office, and my
understanding is they’re actually online
so anybody can pull them, can actually
download them.
THE COURT: What does it say?
ATTORNEY GENERAL HOOD: Your Honor,
I’m sorry, we didn’t bring one either.
THE COURT: I mean, is it certified,
il C f
I t. IIJI.,UI
ATTORNEY GENERAL HOOD: I’m sure it’s
filed with the Secretary of State, and
it’s my understanding that -- here’s how
the whole procedure, apparently, because
everybody is blaming everybody else.
THE COURT: Correct.
ATTORNEY GENERAL HOOD: The Governor
is saying that the parole board has a duty
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Emergency Hearing, 1-11-12
26
to check it out and do all these
requirements.
THE COURT: Well, what it says is
that the person who is applying.
ATTORNEY GENERAL HOOD: Right. And
this is kind of odd. In Exhibit 1 that we
provided.
THE COURT: Yes, sir.
ATTORNEY GENERAL HOOD: Gatlin is
telling MDOC to run it, and MDOC did it
and the State -- we had to pay for it,
where the Constitution requires --
THE COURT: -- the applicant.
ATTORNEY GENERAL HOOD: Yes, ma’am,
and he didn’t do that. MDOC ran that for
him, but even giving him the benefit of
that --
THE COURT: But even if it was the
applicant, the applicant should have to
produce something to the Governor for the cu r i r v v r I, v-. c -F- hat -F- - -4- ha s bee n r uin.
1jvc1 I;LiI LU rit’jvv LIIOL I i IIQ
ATTORNEY GENERAL HOOD: Yes, ma’am,
he got a duty to run it.
THE COURT: Okay. And that is what
you don’t have.
ATTORNEY GENERAL HOOD: Yes, ma’am.
But we say the Governor had the duty to
check it out before he signs this
petition.
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THE COURT: Correct, that’s what I’m
saying, but for him to check it out, it
should have been the applicant who
produced it before he placed his signature
on the pardon is your position.
ATTORNEY GENERAL HOOD: And the
Governor is -- it’s what I’ve heard, I
don’t know, but his lawyers have told our
lawyers that, oh, well, that’s the parole
board’s duty to do that. The Governor
just says if he gets a recommendation from
the parole board then he signs off on it.
But the problem is, I had to send Stan
Alexander, my chief of public integrity
and two biggest investigators we had down
to the parole board and say let us see
these files they said that you have on
this stuff. They say, well, we sent all
that to the Governor’s Office.
THE COURT: You’ve talk about the -4 -k1 4-k .-.k1,-. 4 -,---4- ave iia and LIIC puvI . uui
in terms of what needs to be alleged for
an injunction at this point. And if the
court were to issue an injunction and set
a hearing, is there any detriment that
would occur to the five people or what do
you propose to those five people who were
released on Sunday so as to not jeopardize
them should the pardons be valid?
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Emergency Hearing, 1-11-12
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ATTORNEY GENERAL HOOD: Your Honor, I
2
wanted to treat them as if it was an
3
invalid pardon and they had escaped and
4
have them arrested today. But our lawyers
5
looked at it every which way we could and
6
so we found the safest option was to ask
7
the court to order that they report
8
immediately to the Department of
9
Corrections and continue to report every
10
24 hours, and then show up for a hearing
11
to prove or show some proof that they may
12
have actually met the publication
13
requirements. So that was the safest
14
route to avoid a 1983 action that we could
15
determine.
16
THE COURT: So that would mean that
17
they could remain, basically the status
18
quo is still there, a reporting
19
requirement.
20
ATTORNEY GENERAL HOOD: Yes, ma’am.
01
THE COURT: And that they appear for
22
a hearing at the time I set it for
23
verification. That’s what you’re asking
24
this court for?
25
ATTORNEY GENERAL HOOD: Yes, ma’am.
26
The status quo would also be the same for
27
those who are already incarcerated that
28
we’re asking MDOC to hold up on processing
29
until we can --
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Emergency Hearing, 1-11-12
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1
THE COURT: How many are we talking
2
about?
3
MR. SCOTT: I think the list is
4
approximately 200. And I don’t know how
5
many are actually incarcerated. The
6
Department is going through it right now.
7
The latest update I heard was they had at
8
least 18 that they found. I think the
9
rumored number is around 30.
10
ATTORNEY GENERAL HOOD: I thought
11
that it would be easy for MDOC to just
12
check the list and show me how many you
13
got incarcerated, the list that we
14
attached to our complaint of the
15
governor’s list. But, apparently, David,
16
it’s much more difficult than just that.
17
Because they may have -- all they got,
18
say, is David King, and they got ten David
19
Kings.
20
THE COURT: Well, are you asking that
21
this be amended to say, and Does 1-100 or
22
200 1 because did you not ask me to require
23
them to produce something with reference
24
to 30 of the other 200 or however many?
25
ATTORNEY GENERAL HOOD: What we would
26
ask is that just MDOC cease processing any
27
pardons of people who were presently
28
incarcerated, the names and number of whom
29
we do not know at this point. So we’re
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Emergency Hearing, 1-11-12
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1
just saying to MDOC just stop processing
2
them until we can figure out how many are
3
incarcerated, and we’ll supplement that to
4
the court, surely we can have it by
5
tomorrow who all is incarcerated, we will
6
provide them with notice. We want to make
7
sure everybody has due process in this,
8
but just as long as we can get this
9
stopped temporarily so nobody is released
10
that we have to go chase all over the
11 nation when we find whether or not these
12
so-called pardons were valid.
13
THE COURT: Okay. Then the court
14 will grant an ore tenus motion to add "and
15
does." How many total is it so that I got
16
the correct number of "does" because I
17 would have to have them under the court’s
18
jurisdiction to ask for that to be
19
produced to you. You have named five, but
20 you’re asking for information relative to
21
the entire list. And you don’t have to
22
name them, but certainly they may be
23
added, and in order to do that the
24
amendment would allow the court to issue
25
something to provide you with that
26
information.
27
You may come in here on Wednesday and
28
you-all have resolved everything. But if
29
you want the information, then the court
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Emergency Hearing, 1-11-12
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1
will allow the amendment to add to the
2
first five "and does" 1 through -- what’s
3
the total number on the list?
4
ATTORNEY GENERAL HOOD: I think 216,
5
Your Honor.
6
THE COURT: "And does" then, "1-211?"
7
ATTORNEY GENERAL HOOD: We will try
8
to have certainly have prepared an
9
amendment for those that are incarcerated
10
by tomorrow.
11
THE COURT: For right now you want to
1.2
just move on these?
13
ATTORNEY GENERAL HOOD: Yes, ma’am.
14
What we’re asking in here in addition to
15
just asking the Department of Corrections
16
to not process any further of those who
17
are incarcerated, we’re also asking that
18
the Department of Corrections and the
19
Governor’s Office provide us with the
20
documentation that they have in their ()
possession which may show some
22
publication. So that would be really the
23
Department of Corrections providing
24
information. We will find out the list of
25
those convicts, we will move to amend, and
26
we will notice those who are presently
27
incarcerated of the hearing. It’s going
28
to be a question as to whether or not you
29
would want all of those that are
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1
incarcerated no telling where in
2
the court --
3
THE COURT: I understand. That can
4
be handled on Wednesday at the hearing if
5
you need to make any enlargement.
6
ATTORNEY GENERAL HOOD: Okay.
7
THE COURT: Anything further from the
8
Department of Corrections at this time?
9
MR. SCOTT: Your Honor, the
10
Commissioner doesn’t contest the petition
11
and relies on the wise judgment of the
12
court in making a ruling on that.
13
THE COURT: Thank you, counsel. Give
14
me a few minutes, counsel. I’ll be right
15
back. Do you have any case law, counsel,
16
before I go back?
17
MR. SCOTT: No, Your Honor.
18
(COURT IN RECESS)
19
THE COURT: Counsel, the court has
20
decided to grant the injunction, and I’ve
21
set a hearing for next Wednesday. Hold on
22
just a moment. Let me be sure I got the
23
date correct. What’s today’s date, the
24
11th?
25
MR. SCOTT: Yes, Your Honor.
26
THE COURT: Ten days from that is the
27
21st, correct?
28
MR. SCOTT: That’s right.
29
THE COURT: And the 21st, what’s the
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33
1
day on that?
2
MR. SCOTT: The 21st is a Saturday,
3
Your Honor.
4
THE COURT: Okay. And what’s that
5
following Monday?
6
MR. SCOTT: The 23rd.
7
THE COURT: 23rd. I’m going to do it
8
on, schedule it for Monday at 3:00. Okay.
9
Give her a chance to run that page four.
10
I’m going to pull that out and substitute
11
them.
12
Counsel, the clerk’s office is
13
closed. The courthouse closes at 5:00 and
14
everybody went home. The court
15
administrator has to put the seal of the
16
court on it, and I will give you copies of
17
the orders with the court’s seal.
18
I have made some modifications in the
19
order. That if you will put in your
20
records on Monday, 23rd at 3:00 p.m., the
court will have it’s hearing. Hopefully
22
by that time you will have the information
23
and you will be able to verify that the
24
Constitution has been complied with.
25
The court has added the parole board
26
as an entity that may or may not have
27
documents, but should they have them they
28
will need to produce those, and I have
29
modified the order to include them.
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Emergency Hearing, 1-11-12 34
1
Because I’m ordering the production of
2
documents on persons other than the five,
3
I have amended based on what you have
4
stated to me to add to the defendants "and
5
does 1-200", which allows the state to add
6
any persons after the hearing but would
7
give me the authority to require the
8
production of those documents for those
9
individuals. Let me see if there’s
10
anything else that I added.
11
The court does find the state has met
12
its burden for the temporary restraining
13
order, and because of the types of crimes
14
where the clemency or the pardons were
15
granted, the court list those and finds
16
that murders, manslaughters, rapes, arm
17
robbery, ag-assaults, sexual assaults,
18
kidnapping, burglary, domestic violence,
19
etcetera, are crimes sufficient to raise
20
the level of public interest and also is a
21
threat to the public safety if those
22
persons have been pardoned without the
23
conditions precedent to the Governor
24
having the authority to do the pardons.
25
The court finds that certainly the
26
Governor does have the authority, but the
27
Constitution is clear. It is not
28
ambiguous. There are condition precedent
29
and the publication is required to be
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Emergency Hearing, 1-11-12
35
1
published by the applicant or on behalf of
2
the applicants, which it-means that
3
attorneys could file them, family members
4
could file them. They should be provided
5
back either to the MDOC, the parole board
6
or the Governor, and there should be some
7
record to indicate compliance. And as
8
such, that’s what the court will be
9
looking for on next Monday. Anything
10
further at this time?
11
ATTORNEY GENERAL HOOD: Your Honor, a
12
couple of things we would like to update
13
the court �on.
14
THE COURT: Sure.
15
ATTORNEY GENERAL HOOD: We found out
16
that there are actually 21 that are
17
incarcerated. We will be filing an
18
amendment tomorrow requesting that we name
19
those.
20
THE COURT: Correct. That’s why I
21
put that "does" on there. That would
22
automatically give you a right to amend at
23
any time to increase the number, but would
24
give the court jurisdiction to produce
25
documents of parties not named.
26
ATTORNEY GENERAL HOOD: I’d like to
27
discuss with the court the logistics of
28
those 21 incarcerated certainly as soon as
29
we amend and name, we will serve them
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Emergency Hearing, 1-11-12
36
1
immediately.
2
THE COURT: Yes, sir.
3
ATTORNEY GENERAL HOOD: Is there some
4
method here in Hinds County that we could
5
set up -- the Department of Corrections
6
has capability to have a teleconference so
7
that the convict could be present. They
8
don’t have a right to an attorney in this
9
type of civil action, but we could --
10
David has said that the federal court
11
often has these hearings and they can make
12
it available for the convict. But on our
13
end, if the court doesn’t have that
14
capability perhaps we could through our
15
office get, I think maybe we have
16
something that -- would that work for the
17
court, rather than having them present?
18
THE COURT: You mean like video
19
conferenci ng?
20
ATTORNEY GENERAL HOOD: Yes, ma’am.
21
THE COURT: That’s what I been
22
begging Hinds County for and just had a
23
meeting with the sheriff to see if his
24
budget would accommodate such. It’s
25
ridiculous in this era that with skype and
26
what’s the face time with the ipad-2 and
27
telephones, that we shouldn’t be able to
28
do that. The statue allows for that type
29
of conferences. And right now in this
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Emergency Hearing, 1-11-12
37
1
courtroom we don’t have it available for
2
us.
3
Now what is it that you have that you
4
believe will accommodate that?
5
ATTORNEY GENERAL HOOD: I’m sure our
6
office between now and then, if you’ll
7
allow us to, we’ll set up something in
8
here that we can make work if you give us
9
permission to try to do that.
10
THE COURT: That’s no problem at all.
11
You see those bailiffs over there. All
12
you have to do is contact the office and
13
they’ll make themselves available for you.
14
I will tell you that we got trial
15
scheduled, but on Monday at 3:00 we should
16
be finished with picking any juries, and
17
we will stop at that time. So you can
18
come at any time on Monday after
19
qualifying of the jury -- well, let me
20
see. Call the bailiffs on Monday and
01 maybe there is another courtroom we may
22
also have available to us if this
23
courtroom is being used. We have the
24
county courtrooms, and we might have one
25
of the other circuit judges. We’ll find
26
the place if you’ll call the bailfffs
27
about 10:00 on Monday, we’ll be able to
28
tell you where you can set up.
29
ATTORNEY GENERAL HOOD: Thank you,
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A . .
Emergency Hearing, 1-11-12
M 1
Your Honor. One last thing if I may
2
approach the bench.
3
THE COURT: Yes, sir.
ATTORNEY GENERAL HOOD: I have an
5
example of a pardon. And we have a
6
commutation if you would like to see any
7
difference, but those are just examples
B
for the --
THE COURT: Okay. The way the
1
certificate goes.
1 1
ATTORNEY GENERAL HOOD: Yes, ma’am.
1 7
This is a suspension sentence document you
1 3
might want to peruse.
1
THE COURT: Thank you, counsel. You
1 5
have Ms. Ashley’s number and you can
1 D contact her and she’ll get you to the
1 7
bailiffs. Anything further from the
1
Department?
1
MR. SCOTT: No, Your Honor.
2
THE COURT: If not, then the court
2 1
stands in recess until 3:00 p.m. on
2 7
Monday, January 23rd, which is next
2 3
Monday. And I look forward to seeing you
2 1. at that time.
2 5
ATTORNEY GENERAL HOOD: Thank you,
2 6
Your Honor.
2 7
(HEARING CONCLUDED)
2 B
2
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Emergency Hearing, 1-11-12
39
1
CERTIFICATE OF REPORTER
2
3
I, ESTELLA WREN, Certified Court
4 Reporter in and for the County of Hinds, State
5 of Mississippi, hereby certify that the
6 foregoing proceedings, and including this page,
7 contain a true and correct transcript of the
8 proceedings as taken by me at the time and place
9 heretofore stated, and later reduced to
10 typewritten form by computer-aided transcription
11 under my supervision to the best of my skill and
12
ability.
13
14
I further certify that I am not in
15 the employ of or related to any counsel or party
16 in this matter, and have no interest, monetary,
17 otherwise in the final outcome of the
18 proceedings.
19
20
Witness my signature this the 12th day 01 of January, 2011.
22
23
24
25
26
E 5 ILLLA WREN, CSR#1141
27
28
29
COMPUTER-AIDED TRANSCRIPTION BY [email protected]
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT
iTEM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EXRRL. THE STATE OF MISSISSIPPI PLAINTIFF
VS. CAUSE NO.___________
CHRISTOPHER EPPS, IN HIS ED OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF 12 0112 CORRECTIONS; NATHAN KERN, DAVIDGATI NCIRT CLERK CHARLES HOOKER, ANTHONY MCCRAY, AN JOSEPH OZMET, 775/� Z 2J ENDANTS
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
THIS CAUSE came on for hearing on January 11, 2012 on the plaintiff Jim Hood,
Attorney General for the State of Mississippi, ex rel. the State of Mississippi’s Motion for
Temporary Restraining Order and Injunctive Relief, and the Court, having considered the
A. 1’ ’S łÆhtc Motion, in connection with the Motion, and following a hearing, fmds
the Motion should be GRANTED for the following reasons:
THE COURT FINDS THAT plaintiff Attorney General Hood is the chief legal officer of
the State of Mississippi charged with bringing all suits which affect the public interest. -
Defendant Commissioner Christopher Epps is the Commissioner of the Mississippi Department
of Corrections which is charged with maintaining persons convicted of crimes against the State
of Mississippi and sentenced to its custody.
phU GovemoBryant was elected as Governor during the general statewide election on
November 8, 2011, Governor Bryant took the oath of office, consistent with Mississippi law, on
(b r. �-, -, r r- r’- ’-;?o
January 10, 2012. Former Governor Haley Barbour was Governor Bryant’s predecessor in
office. During Governor Barbour’s tenure in office, he issued pardons and reprieves, and granted
clemency and/or conditional suspensions of sentences to certain individuals convicted of felonies
and other crimes under the laws of the State ofMississippi,LL44u,t.de’, sk1&i.,MP, 14NDkLL M’- a4bI, 4pp ’f49
On or before January 10, 2012, former Governor Haley Barbour officially issued
executive orders granting certain pardons, including, but not limited to reprieves, clemency,
and/or conditional suspensions of sentences, to more than 200 individuals previously convicted
of crimes against the State of Mississippi.
Certain individuals who were serving sentences for felony convictions and in the custody
of the Mississippi Department of Corrections on or before January 10, 2012 were purportedly
granted pardons by former Governor Barbour on or before that date.
Some or all of the aforementioned persons failed to publish a petition for pardon in a
newspaper in the counties where their crimes were committed, or an adjoining county if no
newspaper is published in those counties, for thirty days prior to the purported pardon granted to
them by-former Governor Barbour, or otherwise has failed to come forward with sufficient proof
of such compliance at this time.
Section 124 of the Mississippi Constitution states:
In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit fines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with consent of the senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor
shall have published for days, in some newspaper in the county where the
-2
�- ( i o\uT\
.4 . .
crime was committed, and in case there be no newspaper published in said then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should begrat. (na addd) ’
Pursuant to Section 124, no person convicted of a felony may be pardoned by the Governor
unless, as a condition precedent, the applicant’s petition for pardon is published by newspaper for
thirty days prior to issuance of the pardon in the county specified therein.
THE COURT FURTHER FINDS THAT, Attorney General Hood has shown, through the
facts found by the Court above, that temporary injunctive relief is warranted because there is a
substantial likelihood of success on his claim that the subject pardons violated Section 124 of the
Mississippi Constitution. There is a sufficient threat of irreparable injury should the subject
individuals be released based upon the purported gubernatorial pardons That threat of injury
sufficiently outweighs any potential threat posed to defendants by granting the requested
injunctive relief. Further, the public interest would be served by granting the requested
injunctive relief.
Exigent circumstances exist due to the risk that the aforementioned individuals will be
improperly released from custody, thus justifying expedited temporary injunctive relief against
the defendants.
The Attorney General has complied with the requisites of Miss. R. Civ. P. 65(b) for a
temporary restraining order without notice because his submissions to the Court demonstrate that
immediate and irreparable injury, loss, or damage will result before the defendants may be heard,
and the Attorney General has provided notice to Defendant Epps of this hearing. The court ’Cc
understands that no notice was,1ndividual inmate defendants as their locations are unknown at
this time.
-3- r4e’r r War-
Pursuant to Miss. R. Civ. P. 65(c), the Court dispenses with the requirement of requiring
the Attorney General to provide security for the injunctive relief requested.
IT IS THEREFORE ORDERED pursuant to Miss. R. Civ. P. 65(b) that
A. The defendants shall obtain and provide plaintiff and the Court documented and
sufficient proof consistent with Section 124 of the Mississippi Constitution from any and all
persons convicted of a felony, and to whom a pardon was issued by former Governor Barbour;
B. The Mississippi Department of Corrections is prohibited from releasing from
custody any person listed on Exhibit A until the Department provides the Attorney General and
the Court with documented and sufficient proof that such person has complied with all of the
requirements of Section 124; XI
C. Governor Phil Bryant, Commissioner Epps,nd the inmate defendants shall
provide the Attorney General with all documents and other information regarding the individuals
listed on Exhibit "A"s compliance with Section 124 of the Constitution;
D. Defendants Kern, Gatlin, Hooker, McCray, and Ozmet shall PERSONALLY
APPEAR before this Hinds County Circuit Court in Jackson, Mississippi, for a preliminary
________ _____________ 20 123.22pfl., ,4t in unction hearing on_________ __ ___________ L, r(ee4i, .b-
E. Defendants Kern, Gatlin, Hooker, McCray, and Ozmet are ,to
contact the Mississippi Department of Correction’s Jackson office (or other office designated by
the Department and approved by the Attorney General) every 24 hours to provide accurate
information on their exact locations and any plans to travel beyond their hom
r. ’ r 4
IT IS FURTHER ORDERED that the plaintiff shall provide copies of this order to the
defendants by hand delivery immediately upon entry by the Clerk of Court.
THIS the //day of January, 2012 atT.M.
HINDS COUNTY CIRCUIT COURT JUDGE
1
1114V 14
Governor Haley Barbour Pardons 2004-2012
Govrnor Ex,Order# Date Issued Name of Person Crime Type of pardon
Haley Barbour 998 7/16/2008 Paul Joseph Warnock Murder Full, Complete and Unconditional Pardon
Haley Barbour 999 7/18/2008 Michael Graham Murder Indefinite Suspension of Sentence
Haley Barbour 1000 7/16/2008 Bobby Hayes Clark Manslaughter Full, Complete and Unconditional Pardon
Haley Barbour 1001 7/16/2008 Clarence Jones Murder Full, Complete and Unconditional Pardon
Haley Barbour 1002 7/16/2008 Willie James Kimble Murder Full, Complete and Unconditional Pardon
Haley Barbour 1046 12/29/2010 Jamie Scott Robbery with Deadly Weapon Indefinite Suspension of Sentence
Haley Barbour 1047 12/29/2010 Gladys Scott Robbery with Deadly Weapon Indefinite Suspension of Sentence
Haley Barbour 105 6/30/2011 Michael J. Jones Sale of a Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 106 1/6/2012 Nathan Kern Robbery Full, Complete and Unconditional Pardon
Haley Barbour 1070 1/6/2012 David Gatlin Murder, Aggravated Assault, Burglary Full, Complete and Unconditional Pardon
Haley Barbour 1071 1/6/2012 Charles Hooker Murder Full, Complete and Unconditional Pardon
Barbour 1072 1/6/2012 Anthony McCray Murder Full, Complete and Unconditional Pardon
Hoey Barbour 1073 1/6/2012 Joseph Ozment Murder, Conspiracy and Armed Robbery Full, Complete and Unconditional Pardon
Haley Barbour 1075 1/10/2012 Michael Davie Graham Murder Full, Complete and Unconditional Pardon
Haley Barbour 1076 1/10/2012 Victor C. Collins Murder Full, Complete and Unconditional Pardon
H aley Barbour 1077 1/10/2012 Larry Darnel Roby Murder, Racketeering Full, Complete and Unconditional Pardon
H aley Barbour 1078 1/10/2012 Booker T. Barnes Murder Full, Complete and Unconditional Pardon Haley Barbour 1079 1/10/2012 Anthony Sansing Murder Full, Complete and Unconditional Pardon
Haley Barbour 1080 1/10/2012 Jimmy Lee Avera Murder Full, Complete and Unconditional Pardon
Haley Barbour 1081 1/10/2012 Steven Charles Adams Grand Larceny and Possession of Cocaine Full, Complete and Unconditional Pardon
Haley Barbour 1082 1/10/2012 Donald Dwight Adcock Arson Full, Complete and Unconditional Pardon Haley Barbour 1083 1/10/2012 Thomas Ailes Unlawful Sale of Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 1084 1/10/2012 Mark Hubbard Allen Vehicular Homicide Full, Complete and Unconditional Pardon
Haley Barbour 1085 1/10/2012 Patricia Amacker False Pretense, Felony & Misdemeanor Full, Complete and Unconditional Pardon
Haley Barbour 1 1086 1/10/2012 Michael Clinton Armstrong Attempted Enticement of atd for Sexual Purposes Full, Complete and Unconditional Pardon Haley Barbour 1087 1/10/2012 William Antoin Bardwell Sale of Marijuana, Less Than One Ounce Full, Complete and Unconditional Pardon Haley Barbour 1088 1/10/2012 Robert King Barg Possession of a Controlled Substance Full, Complete and Unconditional Pardon
/ Barbour 1089 1/10/2012 Thomas Holt Beasley Sale of Marijuana, Sale of Cocaine Full, Complete and Unconditional Pardon hitey Barbour 1090 1/10/2012 Melanie Suzanne Beelond Possession of Cocaine Full, Complete and Unconditional Pardon Haley Barbour 1091 1/10/2012 Larry Bell Escape from Custody, Charge of Felonuy Full, Complete and Unconditional Pardon Haley Barbour 1092 1/10/2012 Vincent Cardell Bell Murder, Accessory After the Fact Full, Complete and Unconditional Pardon Haley Barbour 1093 1/10/2012 Frank Delomme Borders Jr. Burglary Full, Complete and Unconditional Pardon Haley Barbour 1094 1/10/2012 Harry Russ Bostick DUI 3rd offense Full, Complete and Unconditional Pardon
Haley Barbour 1095 1/10/2012 Lee Brackeen Jr.
Shooting a Firearm into a Dwelling, Poss. Of
Chemicak with Attempt to
Manufacture/Distribute Full, Complete and Unconditional Pardon Haley Barbour 1096 1/10/2012 Karlton Lee Bradley Possession of Cocaine/Sale with Intent Full, Complete and Unconditional Pardon Haley Barbour 1097 1/10/2012 Dwight E. Breland Possession of Controlled Substance Full, Complete and Unconditional Pardon Does Not Exist 1098
EXHIBIT
F A j
C2
f;pI
Governor Haley Barbour Pardons 2004-2012
Haley Barbour 1099 1/10/2012 Bobby Neal Brown Burglary Full, Complete and Unconditional Pardon
Haley Barbour 1100 1/10/2012 Douglas Duane Burcham Auto Burglary & Grand Larceny Full, Complete and Unconditional Pardon
Haley Barbour 1101 1/10/2012 Aaron Clay Butler Conspiracy to Sell Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1102 1/10/2012 Henry Preston Byrd Robbery Full, Complete and Unconditional Pardon
Haley Barbour 1103 1710/2012 John Springer Buchanan sale of Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 1104 1/10/2012 Jeanette Walker Cain uttering Forgery Full, Complete and Unconditional Pardon
Haley Barbour 110 1/10/2012 Buster Caldwell gape and Armed Robbery Full, Complete and Unconditional Pardon
Haley Barbour 110 1/10/2012 Bobby Ray Camp urglary and Larceny of a Building Full, Complete and Unconditional Pardon
Haley Barbour 1107 1/10/2012 Daniel Caleb.Campbell onspiracy to Distribute Cocaine Full, Complete and Unconditional Pardon Haley Barbour 1108 1/10/2012 Gerald Calhoun Possession of a Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 1109 1/10/2012 Kenneth Carver Burglary Full, Complete and Unconditional Pardon
’Barbour 1110 1/10/2012 Perry Lee Cauthen Conspiracy to Commit Larceny & Grand Larceny Full, Complete and Unconditional Pardon
Haley Barbour 1111 1/10/2012 Jess Cessna
Burglary of an Occupied Dwelling-, Aggravated
assault Full, Complete and Unconditional Pardon Haley Barbour - 1112 1/10/2012 Andrew Camphor fobbery Full, Complete and Unconditional Pardon Haley Barbour 1113 1/10/2012 Michael Lawrence Collum House Burglary Full, Complete and Unconditional Pardon Haley Barbour 1114 1/10/2012 Ryan Jeremiah Cooper rescription Forgery Full, Complete and Unconditional Pardon Haley Barbour 1115 1/10/2012 James Richard Chenault Piossession of Marijuana with Intent to Sell Full, Complete and Unconditional Pardon Haley Barbour 111 1/10/2012 Nathaniel Cunningham Jr. Felony False Pretense Full, Complete and Unconditional Pardon Haley Barbour 1117 1/10/2012 Allison Bernadette Dazet Burglary Full, Complete and Unconditional Pardon Haley Barbour 1118 1/10/2012 Stanley Duncan Grand Larceny Full, Complete and Unconditional Pardon Haley Barbour 111 1/10/2012 Peggy Sue Hand Forgery Full, Complete and Unconditional Pardon Haley Barbour 112 1/10/2012 Earnest Scott Favre DUI Causing Death Full, Complete and Unconditional Pardon Haley Barbour 1121 1/10/201 Russell Glen Ferguson Aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 1122 1/10/2012 Mark Steven Ford Burglary Full, Complete and Unconditional Pardon Haley Barbour 1123 1/10/2012 Jamie Donald Franks Aggravated DUI Full, Complete and Unconditional Pardon
Py Barbour 1124 1/10/2012 Aubrey Orlando Fratesi
Obtaining Controlled Substance By Deception;
Prescription Fraud Full, Complete and Unconditional Pardon ’ Barbour 1125 1/10/2012 Randy Scott Fortenberry Manslaughter Full, Complete and Unconditional Pardon
Haley Barbour 1126 1/10/2012 Rock Allen Gerald sale of Marijuana Full, Complete and Unconditional Pardon Haley Barbour 1127 1/10/2012 Gregg Patrick Gibbes Aggravated DUI Death Full, Complete and Unconditional Pardon Haley Barbour - 1128 1/10/2012 Latisha R. Gilbert tmbezzlement Full, Complete and Unconditional Pardon Haley Barbour 112 1/10/2012 Mabrie C. Gilmer Manslaughter Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/2012 Norman Dwayne Givens Burglary of a House Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/2012 Matthew Nelson Godfrey Conspiracy to Commit Grand Larceny Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/2012 Sharrion Patrice Grant Aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 113 1/10/2012 James Leslie Grantham Possession of Precursor Chemicals Full, Complete and Unconditional Pardon
Haley Barbour 1134 1/10/2012 Thomas Anthony Graziousi lAuto Burglary; Grand Larceny Full, Complete and Unconditional Pardon
I- I-n (p
CL
C, C, ica
- - I
Governor Haley Barbour Pardons 2004-2012
Haley Barbour 1 1135 1/10/2012 Robert Brian Gregg Manslaughter (Culpable Negligence); DUI injury Full, Complete and Unconditional Pardon
Haley Barbour 1136 1/10/2012 Louis Edwin Griffin Jr. Homicide Full, Complete and Unconditional Pardon
Haley Barbour 1137 1/10/2012 Ashley Seymour Gunter Burglary of an Automobile Full, Complete and Unconditional Pardon
Haley Barbour 1138 1/10/2012 Jeffery Lee Haire Possession of a Controlled Substance Full, Complete and Unconditional Pardon
- Haley Barbour 1139 1/10/2012 Barbara Hamilton Burglary of a Residence and Robbery Full, Complete and Unconditional Pardon
Haley Barbour 1140 1/10/2012 James Larry Hankins Armed Robbery Full, Complete and Unconditional Pardon
H aley Barbour 1141 1/10/2012 Wayne Thurman Harris Sale of Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1142 1/10/2012 Kevin Jerome Hatches Possession of Cocaine Full, Complete and Unconditional Pardon -
aley Barbour 1143 1/10/2012 Daniel Wayne Hendon Robbery - Full, Complete and Unconditional Pardon
Haley Barbour 1144 1/10/2012 Kimario Kuhron Hentz Armed Robbery Full, Complete and Unconditional Pardon Hly Barbour 1145 1/10/2012 William Eric Henderson Kidnapping Full, Complete and Unconditional Pardon
Barbour 1146 1/10/2012 Sim Collins Holifielci Grand Larceny Full, Complete and Unconditional Pardon Haley Barbour 1147 1/10/2012 Hunter Olin Hope Sale of 20 MM of Testosterone Full, Complete and Unconditional Pardon
Haley Barbour 114 1/10/2012 Jesse Octavia Houston Embezzlement Full, Complete and Unconditional Pardon Haley Barbour 114 1/10/2012 Joshua L. Howard Statutory Rape Full, Complete and Unconditional Pardon Haley Barbour - 115 1/10/2012 Benjamin Earl Hussey Sale of a Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 1151 1/10/2012 John D. Jackson Strong Arm Robbery Full, Complete and Unconditional Pardon Haley Barbour 1152 1/10/2012 Jerome Francis Jackson Burglary and Larceny of an Automobile Full, Complete and Unconditional Pardon Haley Barbour 1153 1/10/2012 Pamela Yvette Jackson Strong Armed Robbery Full, Complete and Unconditional Pardon H aley Barbour 1154 1/10/2012 Phillip Jackson DUI Homicide Full, Complete and Unconditional Pardon Haley Barbour 115 1/10/2012 Michael S., James Possession of a Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/2012 April Michelle Johnson Embezzlement Full, Complete and Unconditional Pardon Haley Barbour 1157 1/10/2012 Shundrell Johnson Aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 1158 1/10/2012 Thomas Cole Kendall Gratification of Lust Full, Complete and Unconditional Pardon H oley Barbour 1159 1/10/2012 Tammy Kay Swanson Uttering Forgery Full, Complete and Unconditional Pardon Haley Barbour 1160 1/10/2012 Michael Derek Knauss P, ossession of Stolen Property Full, Complete and Unconditional Pardon H aley Barbour 1161 1/10/2012 Christopher Clark Kolb Sale of Hydrocodone Full, Complete and Unconditional Pardon E41ey Barbour 1162 1/10/2012 Anon LaDell Jordan Burglary of a Dwelling Full, Complete and Unconditional Pardon
� Barbour 1163 1/10/2012 Roy Michael Latham Manslaughter - Full, Complete and Unconditional Pardon Haley Barbour 1164 1/10/2012 Bobby Joe Lee Sale of Marijuana Full, Complete and Unconditional Pardon Haley Barbour 1165 1/10/2012 Terry James Lee Burglary & Larceny of a Dwelling Full, Complete and Unconditional Pardon Haley Barbour 1166 1/10/2012 Mary Brower itorgery Full, Complete and Unconditional Pardon Haley Barbour 1167 1/10/2012 Ernest Carl Lowery Jr. House Burglary; Uttering a Forgery Full, Complete and Unconditional Pardon Does Not Exist 1168
Haley Barbour 1169 1/10/2012 Herbert Lowery Possession of Marijuana with Intent to Deliver Full, Complete and Unconditional Pardon Haley Barbour - 1170 1/10/2012 Amy Douglas Love - ldJttering Forgery; Burglary of an Automobile Full, Complete and Unconditional Pardon
Haley Barbour 1171 1/10/2012
Kevin Bandouglas
McCullough
-
Unlawful Sale of Marijuana Full, Complete and Unconditional Pardon
N
LU Uni
CL-,
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3 of 8
Governor Haley Barbour Pardons 2004-2012
HaleyBarbour 1172 1/10/2012 John Earl McCool
Felony Crime of Possession of Precursor Chemicals
with Intent to Manufacture Methamphetamine Full, Complete and Unconditional Pardon
Haley Barbour 1173 1/10/2012 Jimmy McNeese Possession of Precursor Chemicals Full, Complete and Unconditional Pardon
Haley Barbour 1174 1/10/2012 Martin Miller Jack Felony Bad Check Full, Complete and Unconditional Pardon
Haley Barbour 1175 1/10/2012 Michael Arlen Matthew Burglary Full, Complete and Unconditional Pardon
Haley Barbour 1176 1/10/2012 Clinton Jason Moffitt Conspiracy to Commit Voter Fraud Full, Complete and Unconditional Pardon
Haley Barbour 1177 1/10/2012 John Becket Monaghan Sa le of Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 1178 1/10/2012 Charles Wesley Newby
Possession of a Firearm by Convicted Felon; Grand
Larceny; Aggravated Assault Full, Complete and Unconditional Pardon
Barbour 1179 1/10/2012 David Willard Newcomb
Possession of Crystal Meth with Intent Within
1500 Feet of a Church; Manufacture of Crystal
Meth Within 1500 Feet of a Church Full, Complete and Unconditional Pardon
Haley Barbour 1180 1/10/2012 Justin Wade Nunnery Possession of Methamphetamine Full, Complete and Unconditional Pardon
Haley Barbour 1181 1/10/2012 Perry Tyson Owen
Possession of a Controlled Substance with Intent
to Sell, Transfer or Distribute Full, Complete and Unconditional Pardon Haley Barbour 1182 1/10/2012 Danny Lamar Peacock Burglary of an Automobile Full, Complete and Unconditional Pardon
H aley Barbour 1183 1/10/2012 Shirley Peters Sa le of a Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 1184 1/10/2012 Zachary Kane Polk Sale of a Controlled Substance Full, Complete and Unconditional Pardon H aley Barbour 1185 1/10/2012 Corey Powell Burglary of a Business Full, Complete and Unconditional Pardon Haley Barbour 1186 1/10/2012 Richard Earl Price Aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 1187 1/10/2012 Constance Renee Pruitt aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 1188 1/10/2012 Lisa Ralston Brogdon Conspiracy and Burglary of Dwelling Full, Complete and Unconditional Pardon Haley Barbour 1189 1/10/2012 Kenneth Bernard Ratliff Sa le of Cocaine Full, Complete and Unconditional Pardon
Haley Barbour 1190 1/10/20121 Shelly Ann Ray (Self)
Manufacturing Methamphetamine & Possession
of Methamphetamine Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/20121 Norman Lee Redo Possession of Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 11 1/10/2012 Samuel Wade Reid Burglary of a Dwelling Full, Complete and Unconditional Pardon P- ’-,Y-Ba rbour 11 1/10/2012 Katherine Robertson Aggravated Assault Full, Complete and Unconditional Pardon
Haley Barbour 1194 1/10/2012 Roslyn Murray Robertson
Conspiracy to Commit a False Pretense; False
Pretense Full, Complete and Unconditional Pardon Haley Barbour 1195 1/10/2012 Everett Franklin Rodgers Murder and Aggravated Assault Full, Complete and Unconditional Pardon
Haley Barbour 1196 1/10/2012 John Montrell Rose Possession of Marijuana with Intent to Distribute Full, Complete and Unconditional Pardon Haley Barbour 1197 1/10/2012 Barry James Sanderson Jr. K i dnapping Full, Complete and Unconditional Pardon Haley Barbour 1198 1/10/2012 Demetries Andre Sanford Armed Robbery Full, Complete and Unconditional Pardon
Haley Barbour 1199 1/10/2012 Dawn Renee Schaefer
Ebezzlement; Shoplifting; Conspiracy to Commit
Crime of Felony Shoplifting Full, Complete and Unconditional Pardon Haley Barbour 1200 1/10/2012 Jason Todd Shivers Sa le of LSD IFull, Complete and Unconditional Pardon Haley Barbour 1201 1/10/2012 Perry Lee Sims brand Larceny I Full, Complete and Unconditional Pardon Haley Barbour 1202 1/10/2012 1 Justin O’Keefe Smith E4UI Death I Full, Complete and Unconditional Pardon
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Governor Haly Barbour Pardons 2004-2012
Haley Barbour 1203 1/10/2012 Linda Gale Smith Forgery Full, Complete and Unconditional Pardon
Haley Barbour 1204 1/10/2012 Letie Canton Smith lRobbery with a Deadly Weapon Full, Complete and Unconditional Pardon
Haley Barbour 1205 1/10/2012 Patricia Diane Southerland Embezzlement Full, Complete and Unconditional Pardon
Haley Barbour 1206 1/10/2012 Billy Ray Sims ossession of Marijuana Full, Complete and Unconditional Pardon
H aley Barbour 1207 1/10/2012 Scott Mclean Smith ale of Amphetamine Full, Complete and Unconditional Pardon
H aley Barbour 1208 1/10/2012 Shirley Ann Smith tmbezzlement Full, Complete and Unconditional Pardon
H aley Barbour 1209 1/10/2012 Robert Edward Stanfield Sale of a Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 1210 1110/2012 Robert D. Stakley Ottering Forgery Full, Complete and Unconditional Pardon
Haley Barbour 1211 1/10/2012 Tyrone Steele sale of Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1212 1/10/2012 Clemmie Rogers Stewart Jr. Embezzlement Full, Complete and Unconditional Pardon ’y Barbour 1213 1/10/2012 Thomas Stewart Receiving Stolen Property Full, Complete and Unconditional Pardon
Haley Barbour 1214 1/10/2012 Neil Fowler Strickland
Burglary and Larceny of an Automobile; Burglary
and Larceny Full, Complete and Unconditional Pardon Haley Barbour 1215 1/10/2012 Wesley Dwayne Spears Burglary of a Storehouse Full, Complete and Unconditional Pardon Haley Barbour 1216 1/10/2012 Robin Creel Speath Burglary of an Inhabited Dwelling Full, Complete and Unconditional Pardon Haley Barbour 1217 1/10/2012 Emma Stuckey Manslaughter Full, Complete and Unconditional Pardon Haley Barbour 1218 1/10/2012 Paul James Sullivan Assault on a Law Enforcement Officer Full, Complete and Unconditional Pardon Haley Barbour 121 1/10/2012 Kevin Bradley Tabereaux Sale of Cocaine; DUI Homicide Suspension of Sentence Haley Barbour 122 1/10/2012 Mitchell Travis Tanksley Larceny of Cattle Full, Complete and Unconditional Pardon
Haley Barbour 1221 1/10/2012 Kirby Glenn Tate
Possession of Marijuana with Intent; Possession of
Oxycodone; Delivery of Marijuana Full, Complete and Unconditional Pardon Haley Barbour 1222 1/10/2012 Jimmy Lee Thomas burglary of a Business Full, Complete and Unconditional Pardon Haley Barbour 1223 1/10/2012 Samuel Tisdale Jr. Manslaughter Full, Complete and Unconditional Pardon Haley Barbour 1224 1/10/2012 Steven A. Thompson Bribery and or Attempted Bribery Full, Complete and Unconditional Pardon Haley Barbour 1225 1/10/2012 Alice Triplett Embezzlement Full, Complete and Unconditional Pardon Haley Barbour 1226 1/10/2012 Clarence Crawford Tyer Jr. Possession of Stolen Property Full, Complete and Unconditional Pardon
;y Barbour 1227 1/10/2012 Leton Celilous Upchurch A, ttempted Enticement of a Child for Prostitution Full, Complete and Unconditional Pardon
Haley Barbour 1228 1/10/2012 Marion Lee Upchurch Jr.
Burglary of a Dwelling House; Felony Possession
of a Firearm Full, Complete and Unconditional Pardon Haley Barbour 1229 1/10/2012 Joel Warren Vann DUI Death Full, Complete and Unconditional Pardon Haley Barbour 1230 1/10/2012 Chelley Lee Wade Manslaughter (2 counts) Full, Complete and Unconditional Pardon Haley Barbour 1231 1/10/2012 Burton Hill Walden bUl Death Furl, Complete and Unconditional Pardon Haley Barbour 1232 1/10/2012 Bobby Gene Wallace Aggravated Assault Full, Complete and Unconditional Pardon Haley Barbour 1233 1/10/2012 Donna Meshea Walters DUI Third Offense Full, Complete and Unconditional Pardon Haley Barbour 1234 1/10/2012 Anthony Maxwell West 8mbezzlement Full, Complete and Unconditional Pardon
Haley Barbour 1235 1/10/2012 Narquita Watson
conspiracy to Commit Armed Robbery; Accessory
After Fact to Capital Murder null, Complete and Unconditional Pardon Haley Barbour J 1236 1/10/2012 Aaron D. Williams Aggravated Assault Full, Complete and Unconditional Pardon
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5 of 8
Governor Haley Barbour Pardons 2004-2012
Haley Barbour 1237 1/10/2012 CoreyDean Williams
Sale of Controlled Substance; Possession of
Hydromorphone Full, Complete and Unconditional Pardon
Haley Barbour 1238 1/10/2012 Carol Denise Williams Forged False or Fraudulent Prescription Full, Complete and Unconditional Pardon
Haley Barbour 1239 1/10/2012 Shirley Ann Winston I#orgery Full, Complete and Unconditional Pardon
Haley Barbour 1240 1/10/2012 Ralph Edward Worthy Sale of Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1241 1/10/2012 Charles Edward Yates Jr.
Unlawful Possession of Precursor Chemicals;
Possession of Methamphetamine Full, Complete and Unconditional Pardon
Haley Barbour 1242 1/10/2012 Charles Jerome Ypung Ileceiving Stolen Property Full, Complete and Unconditional Pardon
Haley Barbour 1243 1/10/2012 Betty Jean Linston ale of Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1244 1/10/2012 Hardy McCormick Jr. Sale of Marijuana and Receiving Stolen Property Full, Complete and Unconditional Pardon
14’v Barbour 1245 1/10/2012 James Lewis Black Armed Robbery Full, Complete and Unconditional Pardon
Haley Barbour. 1246 1/10/2012 Edith Watts Delivery of a Controlled Substance Medical/Conditional Suspension of Sentence
Haley Barbour 1247 1/10/2012 Curtis Thomas Statutory Rape Medical/Conditional Suspension of Sentence
Haley Barbour 1248 1/10/2012 Danny Joe Stapleton Possession of Controlled Substance with Intent Medical/Conditional Suspension of Sentence
Haley Barbour 1249 1/10/2012 Johnny Lee Nettles Aggravated Assault Medical/Conditional Suspension of Sentence
Haley Barbour 1250 1/10/2012 Annie Pearl Rash Uttering Forgery Medical/Conditional Suspension of Sentence
Haley Barbour 1251 1/10/2012 John Davis Robbery Medical/Conditional Suspension of Sentence Does Not Exist 1252 Does Not Exist - 1253
y Barbour 1254 1/10/2012 Travis Orlando Hill Possession of Marijuana with Intent to Distribute
Medical Suspension of Sentence; Under
Supervision of MDOC Intensive Supervision
Program (House Arrest)
Haley Barbour 1255 1/10/2012 Tawanda Jackson . Manslaughter, Armed Robbery and Kidnapping
Medical Suspension of Sentence; Under
Supervision of MDOC Intensive Supervision
Program (House Arrest)
Haley Barbour 1256 1/10/2012 Rheon McShepa�rd lflomicide or Murder Medical/Conditional Suspension of Sentence
Haley Barbour 1257 1/10/2012 Melissa Ann Cooper Sale of Controlled Substance Medical/Conditional Suspension of Sentence
Haley Barbour 1258 1/10/2012 Jesse Buie Felony DUI Medical/Conditional Suspension of Sentence
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Governor Haley Barbour Pardons 2004-2012
Haley Barbour 1259 1/10/2012 Nichelle Elaine Brandon Aggravated Assault
Medical Suspension of Sentence; Under
Supervision of MDOC Intensive Supervision
Program (House Arrest)
Does Not Exist 1260 Haley Barbour 1261 1/10/2012 Daniel Mac Dobbins Possession of Marijuana Full, Complete and Unconditional Pardon
Haley Barbour 1262 1/10/2012 Karen Irby Manslaughter (2 Counts)
Conditional Clemency on Condition I hat She
Serves 3 Years in MDOC Intensive Supervision
Program (House Arrest) and Additional 2 Years
Under Supervision of MOOC Community
Corrections Division
- "v Barbour 1263 1/10/2012
Judy Lynn Eichelberger
Hawkins Conspiracy to Commit Forgery Full, Complete and Unconditional Pardon
/ Barbour 1264 1/10/2012 Ellis Ray Mooneyham Birglary of a Dwelling Full, Complete and Unconditional Pardon
Haley Barbour 1265 1/10/2012 Leon Turner Murder Full, Complete and Unconditional Pardon
Haley Barbour 1266 1/10/2012 Derrick Lynn Guiton Homicide/Murder; Simple Assault Medical/Conditional Suspension of Sentence
Haley Barbour 1267 1/10/2012 Walter James McKee Armed Robbery Full, Complete and Unconditional Pardon Haley Barbour 1268 1/10/2012 Eldridge Dean Bonds Fo rcible Sexual Battery Full, Complete and Unconditional Pardon
Haley Barbour 1269 1/10/2012 Thomas Levi Howell Sle of Embezzlement; Burglary Full, Complete and Unconditional Pardon Haley Barbour 1270 1/10/2012 Harold L. Miller Ill Manslaughter Full, Complete and Unconditional Pardon Haley Barbour 1271 1/10/2012 1 Reggie Rogers Felony DUI Full, Complete and Unconditional Pardon Haley Barbour 1272 1/10/2012 John Mitchell Sale of Controlled Substance Full, Complete and Unconditional Pardon
Haley Barbour 1273 1/10/2012 Emily Rebecca Hentz
conspiracy to Manufacture Methamphetamine;
Attempt to Manufacture Methamphetamine Full, Complete and Unconditional Pardon
Haley Barbour 1274 1/10/2012 Aaron Brown
Murder; Concealed Weapon; Possession of a
Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 1275 1/1012012 Carol Pinkston burglary Full, Complete and Unconditional Pardon
y Barbour 127 1/10/2012 Guy Blan Newcomb Sale of Cocaine Full, Complete and Unconditional Pardon -. y Barbour 127 1/10/2012 Marion Thompson 4rmed Robbery Full, Complete and Unconditional Pardon
Haley Barbour 127 1/10/2012 Larry Harper
lflomicideJ Aggravated Assault; Felony Possession
of a Weapon Full, Complete and Unconditional Pardon Haley Barbour 1279 1/10/2012 Kelly Bellapani 0, ossession of a Controlled Substance Full, Complete and Unconditional Pardon Haley Barbour 1280 1/10/2012 Jennifer Wilder sexual Battery Full, Complete and Unconditional Pardon
Haley Barbour 1281 1/10/2012 Azikiwe Kambule
Accessory After the Fact to Murder; Armed
çarjacking Full, Complete and Unconditional Pardon Haley Barbour 1282 1/10/2012 Douglas Hunter Helndman Cyberstalking Full, Complete and Unconditional Pardon Haley Barbour 1284 1/10/2012 Larry Booker Uttering Forgery Full, Complete and Unconditional Pardon Haley Barbour 1285 1/10/20121 Lindsay Kathryn Welch Manslaughter (Culpable Negligence) Full, Complete and Unconditional Pardon Haley Barbour 1286 1/10/20121 Steven Todd Thompson Domestic Violence Full, Complete and Unconditional Pardon
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7 of 8
Governor Haley’ Barbour Pardons 2004-2012
Haley Barbour 1287 1/10/2012 Brenda Louise Travis Felony Shoplifting Full, Complete and Unconditional Pardon
Haley Barbour 1288 1/10/2012 Patricia L Simpson Manslaughter Conditional Indefinite Suspension of Sentence
Haley Barbour 1289 1/10/2012 Robert Henderson Receiving Stolen Property; Possession of Cocaine Full, Complete and Unconditional Pardon
Ifi
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.4 . .
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI
JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
VS.
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULIE; KATHERINE ROBERTSON; KIRBY GLENN TATE; AND JOHN AND JANE DOES 1-200
PLAINTIFF
CAUSE NO. 251-12-00033 CIV
FILED JAN 25 2012
ARBAM DUNN, aRCuLTcLERK
DEFENDAIQF
ORDER DENYING MOTION TO TRANSFER AND/OR MOTION TO DISMISS
THIS CAUSE came on to be heard on the Defendants’ Charles Hooker, David Gatlin,
Nathan Kern, and McCray Motion to Transfer this matter from Senior Judge Tomie T.
Green to Judge Jeff Weill and/or Motion to Dismiss.
Having reviewed the submissions of the Defendants with regard to the Motion to Transfer
and being otherwise thoroughly advised in the premises, the Court is of the opinion that the
Defendants’ Motion is not well-taken and should be denied. ........
The Court finds the order for the temporary restraining Order and order of reassignment
were both signed on January 11, 2012 at 5:45 p.m., and properly filed with the Circuit Clerk on
the following business day, January 12, 2012. Further, the Court finds that the order of
reassignment is proper. Therefore, the Defendants’ Motion to Transfer is without merit and
should be denied.
Having further reviewed the submissions of the Defendants with regard to the Motion to
Dismiss and being otherwise thoroughly advised in the premises, the Court finds that the
.4’.
Attorney General on behalf of the State of Mississippi and on behalf of the public’s interest in
Constitutional compliance, has standing and is duty-bound to raise this issue before the Court.
Therefore, the Court is of the opinion that the Defendants’ Motion to Dismiss is not well-taken
and should be denied.
The court also finds that pardons are acts of grace and mercy, thus, they do not
automatically confer due process rights upon the Defendants, except to allow a defendant an
opportunity to present evidence and to show that the applicant, has met constitutional
prerequisites to the issuance of a purported pardon.
The Court further finds that the Complaint for Injunctive Relief is not a challenge to the
Governor’s authority to pardon, but addresses the issue of whether a pardon exists or has been
granted, n accordance with constitutional mandates.
It is well-settled that the Governor may, by proper pardon, extend mercy or forgiveness to
murderers, rapists, child molesters, or any other persons convicted in the courts. The review by
this Court will in no way challenge, question, or interfere with the Governor’s motives,
reasonableness or judgment in granting such pardon.
IT IS, THEREFORE, ORDERED and ADJUDGED that the Defendants’ Motion to
Transfer is hereby denied.
IT IS, FURTHER, ORDERED and ADJUDGED that the Defendants’ Motion to
Dismiss is hereby denied.
SO ORDERED and ADJUDGED, this the _2day of January, 2012.
TOMIE T. GREEN SENIOR CIRCUIT JUDGE
7/(4
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL HINDS COUNTY, MISSISSIPPI
� JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
aD
DU NFt L.ERK
�.---------------D.c.
PLAINTIFF
VS.
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN; DAVID GATLIN; CHARLES HOOKER; ANTHONY MCCRAY; JOSEPH OZMENT; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; KATHERINE ROBERTSON; KIRBY GLENN TATE; AND JOHN AND JANE DOES 1-200
CAUSE NO. 251-12-00033 CIV
DEFENDANT
ORDER DENYING MOTION TO DISQUALIFY THE OFFICE OF THE ATTORNEY GENERAL
THIS CAUSE came on to be heard on the Defendants’ Charles Hooker, David Gatlin,
Nathan Kern, and Anthony MeCray Motion to Disqualify the Office of the Attorney General.
Having reviewed the submissions of the Defendants and being otherwise thoroughly advised in
the premises, the Court is of the opinion .that Defendants’ Motion is without merit and is not
relevant to the issues before the ’Court as to whether there was in fact publication as required by
the Mississippi Constitution, and therefore should be denied.
IT IS, THEREFORE, ORDERED and ADJUDGED that thb Defendants’ Motion to
Disqualify the Office of the Attorney General is hereby denied.
SO ORDERED and ADJUDGED, this the 4#day ofJanuary,O12.
TOMtET. GREEN SENIOR CIRCUIT JUDGE
Q6
4.
From: ESTELLA WREN [[email protected] ] Sent: Thursday, January 26, 2012 8:40 AM To: tomcerikIowreypa.com Subject: 0123012 Hearing
Torn, Judge Green has received written request for transcript. The earliest the transcript will be available is by the end of day on Monday after same has been provided to the court for review.
No virus found in this message. Checked by AVG - www.avg.com Version: 10.0. 1416 / Virus Database: 2109/4767 - Release Date: 01/26/12
1
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT
JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
V.
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY McCRAY, AND JOSEPH OZMET; KATHERINE ROBERTSON; KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; AND JOHN OR JANE DOES 1-200
PLAINTIFF
CAUSE NO. 251-12-33 CIV
FILED JAN 20 2012
BARBARA DUNr( ORCUITCLERK
ic.
DEFENDANTS
SPECIAL APPEARANCE FOR PURPOSES OF MOTION TO TRANSFER AND/OR MOTION TO DISMISS
NOW COME Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony
McCray, through undersigned counsel, with full reservations of all their jurisdictional and other
defenses, including, but not limited to their Rule 12 defenses, and appear specially to move this
Honorable Court to transfer the cause for further consideration by the transferee judge or, if not
transferred, to alternatively to dismiss the Complaint filed herein, for the reasons set forth more
fully herein below.
Case Should be Transferred
I. Rule 1.05A of the Uniform Circuit and County Court Rules requires random
assignment of civil actions filed with the Clerk of Court. This civil action was filed on January 11,
2012, and randomly assigned to the Honorable Jeff Well. However, an order was entered on
January 12,2012, the day after the TRO was entered by the Honorable Tomie T. Green, transferring
the case to the docket of Senior Judge Green. Rule 1.05A lists two instances in which ajudge other
I
than the one originally assigned may hear portions of a case: 1) to handle preliminary procedural
matters if the district has a policy of setting motion dates set in advance with judges being pre-
assigned to certain dates; and 2) if the district has established local rules governing re-assignment fur
reasons ofjudicial economy and efficiency.
2. The local rules for the Seventh Circuit Court District have no provisions for
reassignment of cases, even in the event of a request for emergency relief. Further, there are no
provisions for reassigning the ultimate disposition of the merits of a case to a different judge. The
order entered re-assigning the instant cause violates the requirement of random assignment of cases.
This cause should therefore be re-assigned to Judge Weill for all further proceedings, including
consideration of the grounds for dismissal set forth herein below.
Motion to Dismiss
3. Rule 12(b)(6) tests the legal sufficiency of the complaint. Dismissal for failure to
state a claim under Rule 12(b)(6) is appropriate where it appears beyond a doubt that plaintiff cannot
prove any set of facts in support of his claim which would entitle him to relief. Generally, a 12(b)(6)
motion Will be treated as a summary judgment motion if the court finds it necessary to consider
matters outside of the pleadings. Rosen v. GulfShores, Inc., 610 So. 2d 366 (Miss. 1992).
4. However, the concern in allowing courts to look only to the pleadings in deciding a
12(b)(6) motion is that statements outside of the Complaint will not provide adequate notice to a
plaintiff. However, where the plaintiff has actual notice of all of the information in the movant’s
papers including attached documents and has relied upon these documents in framing the complaint,
the necessity of translating a Rule 12(b)(6) motion into a summary judgment motion is largely
dissipated. Sennett v. United Stales Fidelity & Guaranty Co., 757 So. 2d 206 (Miss. 2000).
2
7-
.4.
A. Lack of Standing
The Mississippi Supreme Court in CiiyofP!cayune i Southern Regional(orp., 916
So. 2d 510 (Miss. 2005). defined standing as whether ’the particular plaintiff had a right to judicial
enforcement of a legal duty of the defendant...." As recently set forth in Hall v. (’ilyofRidgeland, 37
So. 3d 25 (Miss. 2010). "to establish standing on grounds of experiencing an adverse effect from the
conduct of the defendantlappellec, the adverse effect experienced must be different from the adverse
effect experienced by the general public."
6. The State, acting herein through the office of the Attorney General, has not suffered a
particular harm which gives rise to an actionable interest. The Attorney General’s office has neither
pled nor demonstrated a particular harm experienced by the general public. In fact, the nature of the
Complaint tiled in this matter is that it purports to enforce a very generalized interest of the public
which the Hall decision describes as being insufficient to establish standing. For this reason, the.
Attorney General lacks standing to seek the requested relief and the matter should be dismissed.
B. Lack of Subject Matter Jurisdiction
Article 5. Section 124 of the Mississippi Constitution of] 890 grants to the Governor
the sole power to grant pardons in all criminal cases, except those of treason and impeachment and
where there has been no conviction of an alleged crime:
In all criminal and penal cases, excepting those of treason and impeachment, the Governor shall have power to grant reprieves and pardons, to remit lines, and in cases of forfeiture, to stay the collection until the end of the next session of the Legislature, and by and with the consent of the Senate to remit forfeitures. In cases of treason he shall have power to grant reprieves, and by and with the consent of the Senate, but may respite the sentence until the end of the next session of the Legislature; but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have
published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.
Id
8. in Stale v. Kirby, 96 Miss. 629, 51 So. 811 (1910), the Mississippi Supreme Court
recognized that the power to pardon is granted by the Constitution to the Governor and it cannot be
delegated elsewhere. As further explained by the Court Later in Montgomery v. Cleveland, 134 Miss.
132,98 So. lii, 114 (1923), the Governor is the sole arbiter of all matters relating to pardons:
of course , he is the sole judge of the sufficiency of the facts and of the propriety of granting the pardon, and no other department ofthe government has any control over his acts or discretion in such matters. ...no authority other than his judgment and conscience can determine whether it is proper to grant or refuse the pardon.
Id. at 114 (emphasis added).
9. Perhaps most closely on point to this matter is the issue raised in Pope v. Wiggins, 69
So. 2d 913 (Miss. 1954). In Pope, the Court was asked to exercise judicial review over a Governor’s
decision to revoke a pardon. In holding that the Governor could revoke the pardon without any kind
ofhearingto determine whether the conditions of the pardon had been met, the -Court nmdeclearthe -
unfettered discretion of the Executive Branch:
Neither the judicial nor the legislative departments of the state are empowered to impose upon the chief executive the duty to perform judicial functions in the conduct of regular hearings in his office, even though in the exercise of his constitutional power of granting executive clemency there may be involved judgment and discretion in determining when he may be justified in revoking a suspended sentence ’for any reason deemed sufficient to the governor.’ He is the judge of the sufficiency of the information, from whatever source, in determining whether he has a reason that he is entitled to deem sufficient for his action.
Id. at 9 (emphasis added).
4
10. The decision of the Governor to issue pardons to these individuals is not subject to
judicial review. As set forth in the Pope case, the Governor alone is the judge of the sufficiency of
the information on which the pardon is based. Any exercise of jurisdiction by this Court would
violate the separation of powers required under the Constitution of the State of Mississippi. See
Mississippi Constitution, Article 1, §§ 1-2. The grant of a pardon is a specific political question in
which the judicial branch must defer to the executive branch. For all of these reasons, there is no
case or controversy presented in the Complaint which is within the proper jurisdiction of this Court.
C. Misjoinder and Improper Venue of Claims
11. The instant Complaint includes causes of action against disparate defendants, which
are premised on different facts. The Complaint names the Department of Corrections (through its
commissioner) and seeks relief pertaining to individuals who have not yet been released from
custody. In addition, claims are made against the individual Defendants represented by undersigned
counsel. These Defendants, however, are no longer within the custody of the Department of
Corrections.
12. Further, the facts underlying each of the individual Defendant’s pardon are different,
including the facts surrounding the publication requirement raised by Plaintiff. The public record
shows that each individual was pardoned by a separate executive order. The mere fact that these
individuals were pardoned by the same Governor is not sufficient basis under the law to join those
claims. Pursuant to Rule 20 of the Mississippi Rules of Civil Procedure, multiple defendants maybe
joined in a single action only where the claims against them arise out of the same transaction or
occurrence. In addition to misjoinder, this case is improperly venued against these Defendants, as
5
each of them suffered convictions in counties other than Hinds County, Mississippi. The relief
sought herein - which Defendants deny is cognizable in any judicial forum - is nonetheless
misvenued in this county; one in which none of them was convicted.
WHEREFORE, premises considered, Defendants prays that this action be transferred
or alternatively dismissed with prejudice at Plaintiff’s cost.
Respectfully submitted this the 20th day of January, 2012.
Respectfully submitted,
DEFENDANTS CHARLES HOOKER, DAVID GATLIN, NATHAN KERN AND ANTHONY MCCW
THOMAS M. FORTNER
THEIR ATTORNEY
OF COUNSEL:
ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB #5441 Richard A. Filce MSB #100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax)
L1.4
CERTIFICATE OF SERVICE
1, Thomas M. Fortner, do hereby certify that! have this date caused to be mailed, postage
prepaid, a true and correct copy of the above and foregoing Motion to:
The Honorable Jim Hood Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201
Alison Oliver Kelly Alison Oliver Kelly, PLLC Attorney at Law P.O. Box 1644 Jackson, MS 39215
Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds County Courthouse Jackson, MS 39201
Christopher Epps, Commissioner Mississippi Department of Corrections 723 North President Street Jckson;MS392Oi
THIS the 20" day of January, 2012.
THOMAS M. FORTNER
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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT
JIM HOOD, ATTORNEY GENERAL FOR THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
F21 "AQ1110t
CAUSE NO. 251-12-33 CIV
JAN 23 2012 I ’.JL.4VIL I, IJ II IJ..I%.IFL. L JLL I IJ.JI I
BARBARA DUNN, ClRCUfraRK KIRBY GLENN TATE; AARON BROWN; JOSHUA L. HOWARD; AZIKIWE KAMBULE; AND JOHN OR JANE DOES 1-200
SUPPLEMENT TO SPECIAL APPEARANCE FOR PURPOSES OF MOTION TO TRANSFER
AND/OR MOTION TO DISMISS
6(d). Pequest) NOW COME Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony
McCray, through undersigned counsel, with full reservations of all their jurisdictional and other
defenses, including, but not limited to their Rule 12 defenses, and appear specially to supplement
their prior motion to this Honorable Court to transfer the cause for further consideration by the
transferee judge or, if not transferred, to alternatively to dismiss the Complaint filed herein, for the
reasons set forth more fully herein below.
These Defendants hereby incorporate by reference, re-allege and re-adopt their Special
Appearance For Purposes of Motion to Transfer and/or Motion to Dismiss, filed on or about Friday,
January 20, 2013. These Defendants would further show as follows:’
’Due to the urgent and necessitous nature of this proceeding, as well as the undersigned’s very recent retention as counsel for Defendants Charles Hooker, David Gatlin, Nathan Kern, and Anthony McCray, these Defendants move this Court to waive Miss. Unif. Cir. & Cty. Ct. R. 4.03’s requirement of a separate memorandum of authorities for both this supplement and the prior motion that it supplements.
CHRISTOPHER EPPS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; NATHAN KERN, DAVID GATLIN, CHARLES HOOKER, ANTHONY McCRAY, AND TCQTDU (9?tAtT. V ATUtDTkTt D(fl1DTQ(\’tT.
1. The First Amended Verified Complaint fails to state a claim upon which relief may
be granted. See Miss. R. Civ. P. 12(b)(6). To this end, that Complaint fails to allege that any named
or unnamed Defendant has been convicted of treason or impeachment or pardoned prior to
conviction. The absence of any such allegations precludes judicial review of the final actions of
clemency granted by Governor Haley Barbour.
2. The "chief executive power of this State shall be vested in the Governor. . . ." Miss.
Const., Art. V, § 116 (1890). The chief executive power includes the express authority to grant
reprieves and pardons.
3. Under Miss. Const., Art. V, § 124 (1890) there are certain substantive limitations on
the constitutional pardon power granted to the Governor. For example, the Governor does not have
the authority to grant a pardon in cases of treason or impeachment or in any criminal or penal case
before there has been a conviction.
4. The Governor’s authority to grant a reprieve or to remit a forfeiture is reviewable in
the sense that another branch of state government may question the act of the Governor in two
specific instances. First, the Governor has the power to grant reprieves in cases of treason subject to
the consent of the Senate. Second, the Governor also has the power to remit forfeitures in criminal
or penal cases - except for cases of treason or impeachment - subject to the consent of the Senate.
5. Thus, it is only the Senate, a chamber of the Legislative Department, that has the
authority to review the acts of the Governor, and the authority of the Senate is limited to certain
special cases involving reprieves for treason and the remission of forfeitures in criminal or penal
Further, pursuant to Miss. R. Civ. P. 6(d), these Defendants move for leave to have this supplement, their prior motion supplemented hereby and their motion to disqualify, all heard at the next upcoming hearing, currently scheduled for Monday, January 23, 2012.
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cases. These are the only acts of the Governor authorized by section 124 that are reviewable by
another Department of State Government.
6. Section 124 therefore does not provide for the express review by another branch of
state government of any other actions taken by the Governor related to the decisions to grant a
reprieve, to remit a fine or forfeiture, or to pardon.
7. If the framers of the Mississippi Constitution had wanted to provide for the review by
another branch of state government of the Governor’s exercise of the authority to pardon, they
would have expressly placed this review power in section 124. They did not.
WHEREFORE, premises considered, Defendants pray that this action be transferred or
alternatively dismissed with prejudice at Plaintiff’s cost.
Respectfully submitted this the 21 day of January, 2012.
Respectfully submitted,
DEFENDANTS CHARLES HOOKER, DAVID GATLIN, NATHAN KERN AND ANTHONY MCCRAY
THOMAS M. FORThER
THEIR ATTORNEY OF COUNSEL:
ERIK M. LOWREY, P.A. Attorneys at Law Thomas M. Fortner MSB #5441 Richard A. Filce MSB #100554 525 Corinne Street Hattiesburg, MS 39401 601.582.5015 601.582.5046 (fax)
CERTIFICATE OF SERVICE
I, Thomas M. Fortner, do hereby certify that he has this delivered a copy of the foregoing
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instrument to the following, via First Class United States Mail, postage prepaid and e-mail:
The Honorable Jim Hood Special Assistant Bridgette Wiggins Attorney General for the State of Mississippi P.O. Box 220 Jackson, Mississippi 39201 [email protected] bwill(ago.state.ms.us
Alison Oliver Kelly Alison Oliver Kelly, PLLC Attorney at Law P.O. Box 1644 Jackson, MS 39215 kellymd I 0aol.com
Honorable Tomie T. Green Circuit Court Judge First Judicial District of Hinds County, Mississippi Hinds County Courthouse 407 East Pascagoula Street Jackson, MS 39201 [email protected]
David K. Scott Mississippi Department of Corrections 723 North President Street Jackson, MS 39201 dscott(mdoc.state.ms.us
THIS the 2l y of January, 2012.
7ix~~ Tc-!OMAS M. FORTNER