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Hewes v. Langston9/11/2003
nor may make appointments of special justices. Langston is incorrect, however, in her belief that any time fewer than nine justices participate in a case the Governor must, under Section 165 of the Constitution, appoint special justices to fill out a "full complement of justices."
. Even with two justices electing not to participate, there remain seven justices, more than a quorum of the Court, to consider this case. Section 165 of the Constitution should not be read in isolation. Section 145B provides that five justices constitute a quorum of the Court. Most recently, the Court addressed this question in its unpublished but recorded orders entered in Rein v. Benchmark Construction Co., No. 2001-CA-01885-SCT (Miss. Jan. 3, 2003) and Doe v. Stegall, No. 2001-CA-1674-SCT (Miss. Jan. 3, 2003.) In those cases, Presiding Justice McRae in an order recusing himself solicited the appointment by the Governor of a special justice to sit in his stead. Due to the unusual nature of the request for the special appointments, the Court, en banc, reconsidered the matter and issued its orders holding that such appointments are not needed.
. In PERS v. Hawkins, 781 So. 2d 899 (Miss. 2001), all justices recused in a case brought by former Chief Justice Hawkins, and the parties agreed on five special justices, who were appointed by the Supreme Court, to determine the case. Addressing the constitutional and jurisdictional question of this panel's authority, it was said:
This panel of Special Justices constitutes a quorum of the Court and has full jurisdiction and authority pursuant to Article 6, Section 145B and Section 165 of the Mississippi Constitution to decide all issues raised by the filing of the Petition of Interlocutory Appeal by Public Employment Retirement System of Mississippi (PERS). . . .
Hawkins, 781 So. 2d at 900.
. A similar question was raised in Carter v. State, No. 97-CT-01468-SCT (Miss. Jan. 28, 2001), where the appellant sought recusal of Justice Easley and the referral of the case to the Governor for appointment of a special justice under Section 165. There, Justice Easley had elected not to participate before the motion for recusal was filed, and the recusal motion was dismissed as moot. Then the Court, by unpublished but recorded order, found that "there is a quorum of the Court sufficient to decide the case," and denied the request for referral to the Governor.
. In Slush v. Patterson, 201 Miss. 113, 29 So. 2d 311 (1947), the Court had before it on suggestion of error a case in which the trial court was reversed. The case was decided by a three to two vote during a time when the Court had six members. The appellee then raised the point that during the period when the case was considered and decided one member of the Court was absent due to illness. Holding that sitting without the absent justice was not error, the Court addressed the argument that the Governor should have been asked to appoint a special justice:
The commonly recognized definition of a quorum is that it is such a number of a body as is competent to transact business in the absence of the other members. 35 Words and Phrases, Perm.Ed., p. 672 et seq.
Acting upon this express authority, our Supreme Court during the entire course of the thirty years since the amendment [increasing the Court to six justices] has always proceeded with the business of the Court when as many as four members are present and participating, and in the same manner as if those present comprised the entire membership of the Court, and because during the thirty years there has never been a time when less than four members were present and participating, we have never wit
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