Petition for Writ of Prohibition

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

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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

[email protected]

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





OFFICIAL PARDON FOR CHARLES HOOKER



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





OFFICIAL PARDON FOR DAVID GATLIIN



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 /





OFFICIAL PARDON FOR ANTHONY MCCRAY



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


Miss. R. Civ. P.4.

8. Defendant Charles Hooker is a former inmate of Mississippi Department of


Miss. R. Civ. P.4.

9. Defendant Anthony McCray is a former inmate of Mississippi Department of


Miss. R. Civ. P. 4.

10. Defendant Joseph Ozment is a former inmate of Mississippi Department of

3


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



15. Defendant Azikiwe Kambule is currently in the custody of the Mississippi



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


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,


Hooker a full, complete, and unconditional pardon for his crime. See the true and correct copy of


30. Defendant Hooker did not have an application for the purported pardon published



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



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


A


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


48. Defendant Howard did not have an application for the purported pardon published



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,


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



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

COMPUTER-AIDED TRANSCRIPTION BY [email protected]

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Certificate ................................. 39

Style, Number & Appearances ................. 1

Special Hearing ............................. 6

Exhibits .................................... 3

Index ....................................... 2

TABLE OF CONTENTS


Emergency Hearing, 1-11-12 2


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EXHIBITS

PAGE

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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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.

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THE COURT: And have you had an

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opportunity to review the petition?

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MR. SCOTT: I’ve briefly reviewed it.

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THE COURT: And in terms you agree

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that this is an emergency matter needed to

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be addressed by the court?

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MR. SCOTT: Yes, ma’am.

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THE COURT: Okay. You may proceed,

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General Hood.

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ATTORNEY GENERAL HOOD: Your Honor,

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for the record I’m sure that the court is

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aware of what has occurred.

18

THE COURT: Yes, sir.

19

ATTORNEY GENERAL HOOD: Governor

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Barbour issued some 216, I believe,

21 pardons in his last hours of services as

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governor. Section 124 of the Mississippi

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Constitution provides that before a pardon

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may be granted that the convict, the

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applicant for the pardon, has to publish

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in the local paper for a 30-day period.

27

What we have found is numerous

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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


4 5


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down.

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THE COURT: Counsel, have you

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notified the current governor of your

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intent to come before the court for the

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information?

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I notified Governor Bryant that I would

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have to name him in the suit if he didn’t

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order the attorneys for former Governor

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Barbour to provide us with those records

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because we would have to have an order to

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get them, so he’s well aware. So we took

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his name off of the complaint; however, in

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the complaint we are requesting that the

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court issue an order that we get all the

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records because, apparently, we hadn’t

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gotten all the records that Governor

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Barbour had in his possession regarding

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these pardons, because we just want to see

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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

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have statements, we have affidavits, our

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investigators, consumer protection, public

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integrity -- they’re calling all these

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local newspapers to see if these

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publications have been met. We found that

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some hadn’t published anything, some have

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been up there in the last couple of weeks.


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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 --


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

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pardon was. granted On January 6th on all

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five of these individuals, and they were

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released Sunday. So we’re asking that --

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and I’ll go through the rest of this list

8

in a second, but first we’re asking that

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the Department of Corrections have an

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order to protect them to cease handling

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the pardons of those who are incarcerated

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until we can sort out whether publication

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was done.

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Secondly, for these individuals we’re

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asking the court as part of it’s

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injunctive powers to order that they

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immediately report to the Department of

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Corrections and that they --

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THE COURT: That is the named

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defendants, Kern, Gatlin, Hooker, McCray

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if æ7fl1tf7

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THE COURT: Okay.

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ATTORNEY GENERAL HOOD: We looked,

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for example, on inmate Charles Hooker.

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His petition for pardon notice was placed

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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



’It

1

this year, which, there again, we believe

2

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

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petitioned for pardon, notice was placed

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in the Clarksdale’s Press Register as well

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to run December 14 through January 4th.

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And then lastly -- well, there are two

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more actually. Inmate Anthony, McCray,

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M-c-C-r-a-y. His petition for pardon

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notice was placed in the Enterprise

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Journal scheduled to run December 12th

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through January 10th. And, lastly, is

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inmate Joseph Ozmet, 0-z-m-e-t. The

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petition for pardon notice was placed in

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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

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these individuals that we have named in

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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

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Department of Corrections, and we ask that

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the court set a hearing as early as

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possible to have them come in and show

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cause or put on any proof that they’ve had

26

of publication.

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Your Honor, in all fairness to these

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individuals, it could be that some may

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have partitioned Governor Finch, for


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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?


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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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.


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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that I can look at it?

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ATTORNEY GENERAL HOOD: I have some

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exhibits that I’d like to introduce that

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shows some of the publications that we

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have done.

6

THE COURT: Okay.

7

ATTORNEY GENERAL HOOD: As far as the

8

governor’s files, we have not completed

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that. We went around because they

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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

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can relate to the court by document what

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you have before us.

16


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at this time we would submit for

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identification purposes a -- I suppose we

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can just move to introduce them, though,

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since we’re not dealing with a jury. I 01

+k n 4-,-,-.. Li. LflII LII U/ LUtJ UII

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THE COURT: You can. You can move to

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have them admitted as exhibits to your

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petition.

25

ATTORNEY GENERAL HOOD: This is a

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five-page document that contains copies of

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the newspapers that we would move to

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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



1

published anything. So that’s just an

2

example of what we found in going through

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these 200 something pardons that some have

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run out and tried to publish, and it

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hadn’t met the 30-day deadline. And then

6

there are others, some hadn’t published at

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all. And I think that’s the pattern that

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we’re going to find throughout this from

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what we’ve already seen. So I would move

10

that we introduce this two-page letter as

11

Exhibit 2.

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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

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who are named besides Mr. Epps, did you

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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

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Has that been verified as well?

23


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The first one that we introduced on the

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first page right here, it lists when we

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went to the county in Rankin, the Rankin

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Record -- did she give you a copy of that

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first one?

29

THE COURT: Yes. That’s your State’s


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4 ..


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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



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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(EXHIBIT NO. 4 MARKED AND ADMITTED)


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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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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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



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


A . .


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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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 --


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?


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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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.


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.


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?



1

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


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


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 --



29

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



30

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



31

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


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



32

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



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.


A’.


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



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



36

1

immediately.

2


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


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



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,


A . .


M 1

Your Honor. One last thing if I may

2

approach the bench.

3


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


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



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



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

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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

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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

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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

CJ

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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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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




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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C,

.. .-..---


Haley Barbour 1259 1/10/2012 Nichelle Elaine Brandon Aggravated Assault




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

to

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C, C,

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

C, C, cP

I.

.4 . .

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, 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



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.


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.


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.


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


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

7

raw



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.

PI

(ł � ( .

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.


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)


I, Thomas M. Fortner, do hereby certify that he has this delivered a copy of the foregoing

3

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

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