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Miss. Supreme Court unanimously upholds open carry law

August 29th, 2013 2 comments

The Mississippi Supreme Court ruled Thursday afternoon that House Bill 2 – the “open carry law” – is constitutionally clear, agreeing with the state that the law should take effect immediately.

The ruling came in the form of an order, agreed to by all nine justices, and signed by Justice Randy Pierce. The law will take effect immediately.

The fight over HB 2, which passed last legislative session, started earlier this summer when Hinds County District Attorney Robert Shuler Smith asked Hinds County Circuit Judge Winston Kidd to issue an injunction that would keep the law from taking effect July 1. Smith was joined by a handful of law enforcement agencies.

Kidd granted the injunction, saying then that the law was vague. Attorney General Jim Hood’s office appealed Kidd’s ruling to the Mississippi Supreme Court.

The high court said in its ruling Thursday that Kidd “erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional.” The court also disagreed with the portion of Kidd’s ruling that said a reading of the law did not allow a reasonable person to determine what is and what is not prohibited.

HB 2 makes it lawful to carry weapons and firearms, as long as they’re not concealed. Exceptions include certain government buildings like courthouses and schools and private property where they owner has forbidden them. It does not change the state’s conceal carry law, which requires those carrying concealed weapons have a permit.

To read the three-page order, click here.

MSSC Justice Randolph blasts DOJ in Manning execution dissent (Updated)

May 7th, 2013 2 comments

The Mississippi Supreme Court stayed the execution of Willie Jerome Manning, who was scheduled to die Tuesday night at 6 at the Mississippi State Penitentiary at Parchman.

Manning was convicted in 1994 of killing two Mississippi State students in front of the campus’ Sigma Chi fraternity house.

Justices voted 8-1 to issue the stay. Justice Michael Randolph, of Hattiesburg, dissented.

Randolph was critical of the court’s decision, writing that Manning had failed to comply with the statutory requirements attached to his claim that DNA testing on a hair found in one of the victim’s cars could possibly exonerate him.  Randolph took particular issue with letters submitted with the hair analysis from the U.S. Department of Justice that were unsigned.

“The letters challenge not only former FBI experts in hair, but also ballistics. Our established law and justice require more,” Randolph wrote in his opinion.

Randolph also pointed out what he felt were discrepancies in one of the DOJ letters, which said mitochondrial DNA testing became routine in 2000. Randolph cited an article published by the DOJ in 1999 that said the testing became routine in 1992, and would have been available for Manning’s 1994 trial, if he had asked that it be done.

The DOJ’s controversial “Fast and Furious” gun-running program also made an appearance in Randolph’s dissent. The program was initiated in 2009 to track Mexican drug cartel leadership, but the DOJ lost track of almost 2,000 weapons, one of which was used to kill a border agent in 2010. Congressional GOP leaders have complained since that pinpointing exactly who is responsible for the botched operation has been difficult due to DOJ stonewalling.

Randolph compares that to the FBI’s recently asking anti-death penalty group the Innocence Project to assist with the Manning hair analysis process due to his execution date being close.

“Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of victims of the clandestine ‘Fast and Furious’ gun running operation can’t get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants,” Randolph wrote.

The entire order granting the stay and Randolph’s dissent can be read here.

UPDATE: Attorney General Jim Hood has issued a statement. Here it is, verbatim:

I am sorry that the victims’ families will have to continue to live this 20 plus year nightmare.  Out of an abundance of caution, our Court stayed the sentence until it had time to review this flurry of last minute filings.  Yesterday evening our office filed a report with the Court, which I obtained from the district attorney’s office around 6:00 yesterday afternoon.  The  report states that there was no serological evidence from the victims’ fingernail scrapings or semen on the vaginal swabs from the rape test kit for a DNA test to identify. 

After having an opportunity to consider this new evidence, the senior attorneys in this office believe our Court will dissolve the stay and the sentence will be carried out.  If, however, our Court orders that these items be retested, then we will carry out that order. 

 I am in conversations with the DOJ and FBI to determine how these last minute letters came about.  After conversing with expert witnesses at our Crime Lab, it is clear that FBI experts and experts in all states used more conclusive language in their testimony up until around the time the 2009 National Academy of Science report was issued on forensics.  Since then the policy of many experts has been to qualify their testimony by using the magic words “to a reasonable degree of scientific certainty”.  The FBI agents in this case were simply following the standards used in their fields at the time. 

The letters sent from the forensic taskforce chairman at DOJ, merely state that the science was not that exact in 1993, not that these agents were not following the standard followed by all of their colleagues at the time, both state and federal, in testifying to the degree of certainty.

Miss. Power increases cost estimate for Kemper plant

April 23rd, 2013 2 comments

Mississippi Power Co.’s Kemper County coal plant will cost $3.42 billion to build, the utility announced Tuesday afternoon.

That’s just under $600 million more than the $2.88 billion figure that has been the maximum estimate for several months. In a press release, CEO Ed Day said the utility will not seek to recover the additional costs from ratepayers.

Doing so would have been difficult. A recent settlement that allowed Mississippi Power to ask for cost recovery stipulated that the plant’s rate base – or what costs the utility could recover from its 190,000 ratepayers – be limited to $2.4 billion. The settlement was reached after Mississippi Public Service commissioners denied last summer a cost recovery request pending the outcome of litigation that has circled the facility since before construction started.

“While we are disappointed that costs have increased, we believe we have done the right thing by remaining accountable to our customers,” Day said in the company press release.

The Sierra Club, which opposes the plant, still has litigation active against it. A Hattiesburg resident has also challenged the Baseload Act, the 2008 law that allows utilities to recover constructions costs associated with new facilities as they are being built. The Mississippi Supreme Court heard oral argument related to the Baseload challenge earlier this year, but has not yet ruled.

The palnt is scheduled to begin commercial operation in May 2014.

State’s electronic court system expanding

April 2nd, 2013 No comments

The Mississippi Electronic Court system is adding to its database.

On March 18, electronic filing became mandatory in Grenada County Chancery court. On March 4, chancery courts in Holmes and Yazoo counties were brought online. Rankin County chancery court joined Feb. 4.

Chancery courts in Lowndes, Webster and Clay counties will soon mandate e-filing, though an exact date has not been set, according to a Mississippi Supreme Court press release. In all, chancery courts in those counties and in Madison, Harrison, DeSoto and Warren mandate e-filing.

Right now, MEC is used only for civil cases. Madison County Circuit Court will be the first to use it for criminal cases. Training for that started March 19, though an exact date for it to start is still unknown.

Madison County was the pilot site when the MEC started in 2009. The system was modeled after PACER, the federal courts’ e-filing database.

Both are designed to make filing more efficient for attorneys, and to expand public access to court files. Mississippi Supreme Court Chief Justice Bill Waller Jr. has spearheaded the system’s development.

“You can certainly get an order entered much quicker this way. In the past, even if you had an agreed order, you would leave it with my court administrator and I would sign it,” said chancery judge Percy Lynchard, whose district includes Grenada County, in the MSSC’s press release. “It saves a whole lot of paperwork, a whole lot of time and trouble, and a whole lot of miles to the courthouse,”

Free MEC training is available for attorneys at the Gartin Justice Building, which houses the MSSC and the Court of Appeals, in Jackson. Online registration is available here. Training dates will be set in April and May.

According to court figures, almost half of the 7,050 licensed attorneys in Mississippi have registered to use MEC. More than 1,200 non-attorneys have signed up.

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Miss. Supreme Court asks for more briefs related to Baseload Act

February 14th, 2013 No comments

The Mississippi Supreme Court asked Thursday afternoon for additional briefs related to a Hattiesburg resident’s constitutional challenge to the Baseload Act.

The ruling comes after a Jan. 28 hearing in which Thomas Blanton’s attorney told seven of the court’s justices that the Act – which was passed in 2008 and allows utilities to charge customers for generation facilities as they are being built – is unconstitutional because it violates the Constitution’s 14th Amendment, which prevents confiscatory taking of property without due process.

Mississippi Power attorneys argued in the same hearing that the law allows for utilities to increase rates for used and useful services, and the facilities the Act is designed to pay for are the benefit customers receive.

The hearing was the result of a rate dispute between the PSC and Mississippi Power related to the Kemper coal plant. The two entities settled that less than a week before the hearing. In Thursday’s order, the high court accepted the settlement and dismissed that case.

The court said the briefs it ordered will have to address five issues:

  1. Whether Blanton’s challenge to the Baseload Act is moot.
  2. Whether his challenge is ripe for the court to consider
  3. Whether the Baseload Act provides for an unconstitutional tax, as Blanton’s lawyer alleged Jan. 28.
  4. Whether the Baseload Act is otherwise unconstitutional
  5. Whether Blanton was accorded due process

Attorneys for Blanton, Mississippi Power Co. and the Mississippi Public Service Commission have 20 days from Feb. 12 to submit their briefs.

Whether CWIP constitutes a tax takes up most of Kemper hearing

January 28th, 2013 No comments

Most of Monday’s hour-long Kemper coal plant hearing at the Mississippi Supreme Court centered on two questions:

If the Mississippi Public Service Commission allows Mississippi Power Co. to charge its ratepayers for the facility’s construction, will it constitute a tax, or will it simply be a rate assessment?

If it is a tax, does it render the Baseload Act unconstitutional?

Mike Adelman, an attorney who represents Thomas Blanton, says the Baseload Act – a 2008 law that authorized utilities, with PSC permission, to collect construction-work-in-progress funds from ratepayers – is unconstitutional because it violates the Constitution’s 14th Amendment, which prevents confiscatory taking of property without due process.

“It’s a tax on electricity that has not yet been provided,” said Adelman, whose client is a Hattiesburg resident and one of Mississippi Power’s roughly 186,000 ratepayers.

Blanton’s claim was originally part of the rate dispute between commissioners and Mississippi Power. The dispute arose over the summer when commissioners denied a 13 percent rate increase that would have generated about $58 million to put toward the coal plant’s construction. Commissioners said then they would not entertain anymore rate increase requests related to the plant until the Mississippi Supreme Court had ruled on litigation brought against the plant by the Mississippi Sierra Club. That litigation is separate from Monday’s proceedings.

The PSC’s stance changed last week, when commissioners and Mississippi Power Co. agreed to a settlement whose terms will allow the utility to ask for CWIP recovery in exchange for the hard cap on the project being lowered from $2.88 billion to $2.4 billion, and ratepayers being granted an ownership share in the plant’s TRIG technology.

Adelman, in his argument against the Baseload Act, equated CWIP with a tax, something he said the PSC does not have authority to levy. Even if lawmakers intended to convey that authority in the Baseload Act, Adelman said, the language in the law does not do that.

The law essentially forces Mississippi Power customers to become investors in the project, Adelman said.

“There is a recognized constitutional right – a right that is recognized by this court – that rates cannot be assessed for power that is not being delivered,” Adelman told the seven justices. Chief Justice Bill Waller Jr. and Associate Justice Leslie King were not in attendance.

Mississippi Power attorney Ricky Cox said that law allows for utilities to increase rates for “used and useful” services. “And CWIP is a used and useful service,” he told the court.

“These facilities (which are eligible for CWIP funds) have unique characteristics,” Cox said. “They run 24 hours a day and provide dependable power. That’s the benefit customers are getting.”

Blanton’s argument that the Baseload Act is unconstitutional is moot and should be dismissed, Cox said, because the Baseload Act has not been applied.

Justin Matheny, representing the PSC, echoed Cox’s assertion that ratepayers do receive a tangible benefit in exchange for paying CWIP.

“In this case, they’re helping to build a new plant and helping to continue to provide electricity into the future.”

The small amount of back and forth between justices and lawyers related to the original rate dispute centered on whether the settlement was final, and rendered the case closed.

Presiding Justice Jess Dickinson during the hearing expressed skepticism that it was, since the settlement kicked proceedings back to the PSC. Any dispute arising out of the new proceedings, Dickenson said , would likely land back before the high court.

Justices will issue a written decision, something Dickinson told lawyers he hoped would happen soon.

Baseload Act challenger hopes high court hearing moves forward in wake of settlement

January 25th, 2013 No comments

Thomas Blanton’s lawyer hopes Thursday’s Kemper rate case settlement between Mississippi Power Co. and the Mississippi Public Service Commission does not kill his client’s opportunity to air his grievances against the Baseload Act before the Mississippi Supreme Court.

The high court had scheduled oral argument for Monday to hear a dispute between MPC and the PSC over rates for the project. The two entities settled that dispute Thursday, in an agreement that lowered the amount the utility can charge its ratepayers for the project from $2.88 billion to $2.4 billion. The disagreement arose over the summer, when commissioners denied a 13 percent rate increase that would have generated about $58 million. Commissioners also said then they would not entertain any more rate increase requests related to construction-work-in-progress money for the coal plant until the Mississippi Supreme Court had ruled on the litigation surrounding it.

The agreement, which allows MPC to ask anew for CWIP funds, still must gain supreme court approval. Justices could still force the parties to appear Monday, or they could cancel the hearing.

Blanton, a Hattiesburg resident, has challenged the constitutionality of the Baseload Act, the 2008 law that granted utilities the authority to ask for CWIP funds. His attorney said Friday morning that he hopes to still be able to argue that point Monday.

“If anything, it strengthens my client’s argument,” Adelman said, referring to Thursday’s settlement. ”It’s based on a statute that’s unconstitutional. I don’t understand what basis there is for the commission to change their position, when they said specifically they were going to deny the rate increase until there was a decision by the Mississippi Supreme Court.”

Attorneys for the PSC and MPC on Friday morning filed motions with the supreme court asking justices to dismiss the rate dispute and Blanton’s claim. Adelman filed a motion to oppose the dismissal. The court had not decided as of early Friday afternoon whether to proceed with Monday’s hearing, which was still scheduled to begin at 1:30 p.m.

Miss. Supreme Court to hear Kemper arguments Jan. 28

January 21st, 2013 No comments

The Mississippi Supreme Court will hear oral argument Jan. 28 related to the Sierra Club’s ongoing legal opposition to Mississippi Power Co.’s Kemper County coal plant.

The hearing, which will start at 1:30, will center on this question: Why should the (MSSC) not reverse the Public Service Commission for its failure to hold the rate case in abeyance until the case of Sierra Club v. Mississippi Public Service Commission currently on appeal in Harrison County Chancery Court is finally decided?

Attorneys for MPC will have six minutes at the beginning to respond to the question. Attorneys for the PSC will have six minutes to do the same immediately afterward.

Attorneys for Thomas Blanton, a Hattiesburg resident who has challenged the constitutionality of the Baseload Act, will then have 20 minutes to make their case against the 2008 legislation that authorized utility companies to pass construction costs on to ratepayers before the generation facilities they were building were operational.

The hearing will conclude with MPC and PSC splitting 20 minutes to respond to Blanton.

The Sierra Club has fought the coal plant from its inception, calling it an expensive and unnecessary environmental hazard. Mississippi Power has said it’s the best way to ensure long-term availability of economical power for its nearly 200,000 ratepayers.

Judge affirms certificate for Kemper County coal plant

December 18th, 2012 No comments

A chancery judge in Harrison County has affirmed that the certificate of public convenience and necessity for the Kemper County coal plant is valid.

The Sierra Club had argued that it was not, and that the Mississippi Public Service Commission should conduct a full round of evidentiary hearings before deciding whether to issue another one. The Sierra Club’s action was in response to the Mississippi Supreme Court’s kicking the issue back to the PSC earlier this year because justices said the original certificate, issued in 2010, did not cite sufficient evidence from the record of proceedings.

Commissioners issued a second certificate over the summer. Construction on the plant, which began in 2010, has continued while the litigation unfolded.

“Mississippi Power customers are the ones who will benefit from this important decision,” Ed Day, president and CEO of Mississippi Power, said in a statement Tuesday morning.

The Sierra Club will appeal Monday’s ruling, state director of the Mississippi chapter Louie Miller said. “We’ll probably ask for an expedited appeal,” Miller said in a phone interview, referring to the possibility that the appeal could languish at the supreme court for several months.

Public service commissioners ruled over the summer that they would not entertain any rate increases associated with the plant until the Mississippi Supreme Court had ruled on the latest round of litigation surrounding it. That ruling came after a hearing in which Mississippi Power asked for a 13 percent rate increase that would have generated about $58 million. Monday’s chancery court ruling now opens the door for the litigation to proceed to the high court.

Rate increase estimates attached to the plant have varied. Documents Mississippi Power filed with the commission in 2009 said rates would go up an average of 45 percent. In the order granting the second certificate, commissioners said rate increases would peak at 33 percent before going back down.

Day said earlier this year that the sale of the plant’s by-products would generate more revenue than originally anticipated, keeping rate increases under 30 percent.

The $2.88 billion plant is scheduled to begin operation in May 2014.

Anti-corruption group to make stop in Jackson Tuesday

November 6th, 2012 No comments

Protests of every kind imaginable are common on Election Day, and things won’t be any different in Jackson.

Lawless America, whose website says is intended to root out government and judicial corruption, will be in town somewhere, though the website doesn’t say exactly where or when.

The itinerary (posted here) says members will start the day in Baton Rouge, so it’s likely it will be at least after lunch before they arrive in Mississippi. If the group holds form, whatever protest it has planned will occur near the Capitol or near the Gartin Justice Building, which houses the Mississippi Supreme Court and the Mississippi Court of Appeals.

One of Lawless America’s more ambitious projects is its plans to stretch a ribbon of yellow crime scene tape in front of government buildings across the country. Scenes from each of its protests are being compiled into a movie, too. Again, it’s not clear if the group plans to make its stop in Jackson a part of either project, but it’s a possibility.

The group also maintains a database on officials by state that it considers to be corrupt, or at least less than honest. Mississippi’s list includes leaders from both parties, attorneys and judges. It can be viewed here.