Kirksey v. Dye

564 So. 2d 1333, 1990 WL 11741
CourtMississippi Supreme Court
DecidedFebruary 7, 1990
Docket07-59078
StatusPublished
Cited by23 cases

This text of 564 So. 2d 1333 (Kirksey v. Dye) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirksey v. Dye, 564 So. 2d 1333, 1990 WL 11741 (Mich. 1990).

Opinion

564 So.2d 1333 (1990)

Henry J. KIRKSEY, State Senator, and Jessie Pendleton
v.
Brad DYE, Lieutenant Governor of the State of Mississippi, [*]William Allain, Governor of the State of Mississippi, [**]Edwin Lloyd Pittman, Attorney General of the State of Mississippi, and the State of Mississippi, By and Through Edwin Lloyd Pittman, Attorney General.

No. 07-59078.

Supreme Court of Mississippi.

February 7, 1990.
Rehearing Denied August 22, 1990.

*1334 Carroll Rhodes, Hazlehurst, for appellants.

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice January 3, 1989, Mike C. Moore, Atty. Gen., T. Hunt Cole, Jr., Sp. Asst. Atty. Gen., Jackson, for appellees.

Before ROY NOBLE LEE, C.J., and PRATHER and ANDERSON, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Henry Kirksey and Jessie Pendleton brought suit in the Circuit Court of the First Judicial District, Hinds County, Mississippi, against Brad Dye, Lieutenant Governor of the State of Mississippi, the Governor of the State of Mississippi, the Attorney General of the State, and the State of Mississippi, alleging that the participation of Lieutenant Governor Brad Dye on the Joint Legislative Budget Committee was a violation of the provision for separation of executive and legislative powers of the Mississippi Constitution of 1890. The defendants moved for summary judgment on two grounds and, after a hearing, the circuit court entered an order dismissing the complaint for lack of standing by Kirksey and Pendleton. From that judgment, they have appealed to this Court.

Statement of the Case

The basis of this action is Mississippi Code Annotated § 27-103-101(1) (Supp. 1989), et seq., which the appellants contend violates the Mississippi Constitution of 1890, i.e., separation of executive and legislative powers. See Appendix. The statute creates a Joint Legislative Budget Committee, with the authority to conduct its affairs through a Legislative Budget Office administered by a Director appointed by the Committee. The Legislative Budget Office is charged with preparing for each fiscal year "an overall balanced budget of the entire expenses and income of the State ... encompass[ing] the operations of all general-fund agencies and all special fund agencies and the State Highway Department... ." MCA § 27-103-113 (Supp. 1989). The Lieutenant Governor (Brad Dye) is a voting member and rotating chairman of the committee. Appellants contend that the statute violates the following provisions of the Mississippi Constitution of 1890:

Article 1, Section 1.
The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
Article 1, Section 2.
No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

This suit was filed November 2, 1987, by appellant Henry Kirksey, then State Senator and an independent candidate for the office of Lieutenant Governor of the State of Mississippi, along with appellant Jessie *1335 Pendleton, a registered voter and citizen of Copiah County. They sought to enjoin appellee Brad Dye from the further exercise of any functions of the office of Lieutenant Governor. Motions for summary judgment were filed by the appellants and the appellees, there being no dispute of fact, but only a law question. The lower court denied the motion of the appellants and granted the motions of the Lieutenant Governor, Governor, and Attorney General.

Law

The appellants assign four (4) errors committed by the court below. The appellees' motion for summary judgment was based on (1) the procedural issue of standing, and (2) the substantive ground that they were entitled to prevail under the law previously enunciated by this Court. The lower court sustained the appellees' motions for summary judgment on the ground that appellants lacked standing to bring this suit. Since the law has been settled by previous decision of this Court, we do not address the question of lack of standing and address the following questions:

(1) Whether or not Lieutenant Governor Brad Dye is in violation of the separation of powers doctrine by serving as a voting member of the Joint Legislative Budget Committee.
(2) Whether or not the trial Court erred in granting appellees' motion for summary judgment.

The appellants cite and rely upon Alexander v. State By and Through Allain, 441 So.2d 1329 (Miss. 1983), and urged that:

(1) "[t]he essence of Alexander is that no officer of one department may perform a function `at the core' of the power properly belonging to either of the other two departments." Dye v. State, 507 So.2d 332, 337 (Miss. 1987);
(2) budget-making is `at the core' of the legislative department; and
(3) the Lieutenant Governor is an executive officer.

We distinguish Alexander and are of the opinion that the case at bar is controlled by Dye v. State ex rel. Hale, 507 So.2d 332 (Miss. 1987), in which this Court held that Dye could constitutionally assume the wide legislative powers conferred upon him by the Senate rules. The essence of the Dye case as it relates to the case at bar is that the Lieutenant Governor is constitutionally an officer of both legislative and executive departments and, as President of the Senate, is "enough of a member of the Senate" to be eligible to receive the legislative powers conferred upon him by that body. Appellee bases his assertion of the constitutionality of the Lieutenant Governor's service on the Joint Legislative Budget Committee on the following propositions excerpted from the Dye opinion:

(1) The legislature had the inherent authority to create the Joint Legislative Budget Committee and to determine its composition:

[T]he legislature of this state has the power and prerogative to create such committee as it may deem appropriate to assist it in its budget-making responsibilities.

Alexander v. State ex rel. Allain, 441 So.2d 1329, 1339 (Miss. 1983) (emphasis added).

(2) This Court in Dye rejected the proposition that the Lieutenant Governor is simply an officer of the executive branch of government:

Alexander contains dicta to the effect that there are
no exceptions to the mandates that the powers of government be held and exercised in three separate and distinct departments and that no person holding office in any one department should have or exercise any power properly belonging to either of the others.
Alexander, 441 So.2d at 1335.
This language does not — and could not — alter the fact that Sections 129-132 [of the Mississippi Code of 1890] inescapably provide an exception to the separation mandate by vesting in the Lieutenant Governor some authority in the Executive Department and other authority in the Legislative Department, thus making him an officer of both departments.

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Cite This Page — Counsel Stack

Bluebook (online)
564 So. 2d 1333, 1990 WL 11741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirksey-v-dye-miss-1990.