Saturday, January 30, 2010

NMC ponders: "Are (the AG and DAs) going to be able to tell Barbour where to stick his cuts?"

In a comment to his post on yesterday's stunning order from the Mississippi Supreme Court, NMC brings up a very intriguing point.  Contrary to what we were all taught about separation of powers when we were in junior high, prosecutors in Mississippi fall under the judicial branch of our state government.  Typically, prosecutors are members of executive branch, as it is their function to see to it that people are punished for breaking the law, and the executive in a tripartite system is responsible for "enforcing the laws."

But not under Mississippi's 120 year old Constitution.

The three branches of our state government are established in Article 1, Section 1:
The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.  
The offices in each of those branches are not created until later in the document, however.  Article 4, entitled "Legislative Department," creates the Mississippi Legislature.  Article 5, dubbed "Executive," gives us a Governor and Lt. Governor.  And Article 6, labeled "Judiciary," gives us a Supreme Court, circuit and chancery courts, an Attorney General and district attorneys.

Why does this matter?  Well, Governor Barbour has ordered cuts to District Attorneys across the State, just as he did with the Supreme Court.  The cuts he has ordered are so severe that virtually all felony prosecutors in the entire state will be furloughed for the entire months of May and June.  If the Supreme Court meant what it said in yesterday's order, then the AG and DAs should be immune from cuts as well.  We'll see how this all plays out.

(As an aside, one might could argue that Barbour, if he failed to fund prosecutors for May and June, would be in violation of not only the separation of powers doctrine, but Article 5, Section 123, which says, "The Governor shall see that the laws are faithfully executed."  Of course, that very Section will be what the Governor relies upon in his brief supporting the constitutionality of the cuts to prosecutors.  What a mess.)

7 comments:

Jim said...

How can the Governor see that all laws are faithfully executed if the Attorney General and the prosecutors are in the judicial branch of government? We really do need to have a constitutional convention.

Charlie Ali said...

The Governor can direct the Attorney General or other state officers 2 open an investigation on any matter so that laws will b enforced. I don't know if governors have utilized that and I cannot give the reference in the code. I would luv 2 c a constitutional convention now, but the powers that b probably know it would b reformist and not 2 the liking of elites, chamber of commerce, etc.

Jim Craig said...

Matt, you say:

"The cuts he has ordered are so severe that virtually all felony prosecutors in the entire state will be furloughed for the entire months of May and June"

like it's a bad thing . . .

Matt Eichelberger said...

Jim Craig - I know, I know. But I much prefer to win when there's someone on the other side.

Jim Craig said...

Ah, youth. At my age, I'll take a win any (legal) way I can get one.

shaun said...

Jim,

When cases stall and the justice system shuts down, I think thats a bad thing for us all. No matter if you are a defense attorney or not, when the public's safety is at stake its a bad thing for us all.

shaun said...

Actually I would much prefer if the Governor's office could be furloughed and to cut the budget to the executive chef and liqour budget.

I mean if the Governor can't "faithfully" execute the laws since the prosecutors are in the Judiciary, than why in the heck do we need President Taft uh I mean Barbour