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Petition for Writ of Prohibition

Petition for Writ of Prohibition

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Published by: cottonmouthblog on Jan 31, 2012
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IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI
NO.___________
IN RE: CHARLES HOOKER, DAVID GATLIN,NATHAN KERN, AND ANTHONY MCCRAY
ETITIONERS
PETITION OF CHARLES HOOKER, DAVID GATLIN, NATHAN KERN, ANDANTHONY MCCRAY FOR WRIT OF PROHIBITION AND/OR MANDAMUS, OR,ALTERNATIVELY, FOR PERMISSION TO APPEAL INTERLOCUTORY ORDERSIMMEDIATE STAY REQUESTEDEXPEDITED EMERGENCY CONSIDERATION REQUESTEDHEARING AT WHICH YOUR PETITIONERS MAY BE UNLAWFULLY
IMPRISONED IS NOW SET FOR FEBRUARY 3
ON PETITION FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICTOF HINDS COUNTY, MISSISSIPPIHONORABLE 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 WASDENIED 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. Trueand 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 tothe custody of the Mississippi Department of Corrections ("MDOC") and to prevent the releaseof 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. ChristopherEpps, 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 allegedfailure 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
2
 
a
published for thirty days, in some newspaper in the county where the crime was committed andin 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 ChristopherEpps, 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 forfailing to do so, nor for the Circuit Court’s failure to insist upon notice.
3

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