Possession of a Weapon by a Felon, Mississippi Code 97-37-5

Ran across this statute last week and thought it might make for an interesting blog post. Below is the text of the statute. My commentary is the green text that is mixed in. If you have any comments please feel free to add them in.

(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(1c) This is an interesting list of "weapons": bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack or silencer. My issue with this list is who gets to decide what a certain type of knife is? Switchblade is fairly clear but a Bowie knife is more confusing, is their a length something has to be to be a Bowie or a Butcher knife is even more open to interpretation, are we talking a clever or a boning knife or any knife that can be found in the grocery store meat department? I don't see any definitions for these "weapons" so I guess discretion falls to the courts, but with that comes the problem of wrongful arrest if a cop thinks its a knife under this section but the judge doesn't. I wish this section was more clear.

(2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(2c) This section had a proposed amendment to make this a 10 year maximum penalty, up from 3 by HB 1552 (2007), but it did not get out of committee. I don't have a big problem with this amendment but I always worry about how many sentences get increased in election years for those about to try and reelected want to look "tough on crime".

(3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.

(3c) I like this provision, kind of a reward for being "rehabilitated". However, it does provide for discretion which can be good or bad with elected judges and could, in a broken system, allow for the purchasing of these certificates of rehabilitation with a lawyer who is buddies with a judge or a campaign contribution to the judge that slides past most voters.

Oktibbeha Co. Hospital v. Mississippi State University, MS Dept of Health and Premier Radiology

Issued last week by the MS Supreme Court was an interesting ruling, 2006-SA-00358-SCT, concerning the CON (Certificate of Need) process in Mississippi. For a slight bit of background I will say that to run a hospital or medical center of some sort in Mississippi you need a CON which is has many, many hoops to jump through and red tape to be crossed. I beleive they all have to start as legislation and the hoops and tape are administered by the MDOH. In this case it appears that the legislature passed a bill in 2004 that would allow a MRI system and a linear accelerator (I think they are similiar but different, but I'm no doctor) to be placed in Starkville with the condition that 2/3 of its operable time be allowed to the University for research purposes and 1/3 of its operable time could be for private use. With this bill the normal CON procedures were waved. The Oktibbeha Co. Hospital (OCH) objected to this, a suit followed and last week the MS Supreme Court ruled on it, saying that this bill was not unconstitutional and that use of these systems through Mississippi State is acceptable.

Now I will provide a bit of my take on this.

OCH was the only game in town for things like a MRI and with this bill they lose their local monopoly. I'm sure they are more upset by the 1/3 time that Premier Radiology is getting than the 2/3 research component for MSU.

I think MSU and more especially Premier pulled a bit of a fast one as Premier used the cover of a research university (really the research university in the state) to get access to machines that can exponentially expand their business without jumping through the hoops and redtape of a CON process.

Finally, I think OCH is pretty unhappy with their lawyers at this point. While the Court didn't completely blast the lawyers for not filing this constitutional challenge with the MS Attorney General's Office, as is required, they did make a remark and strike that entire part of the argument (one of the three issues). The Court didn't buy the argument that because MSU was served and technically the head lawyer at MSU is an AG attorney proper notice was given. This strikes me as a piece of bad lawyering as service and notice are one of the few things that is easy to get right and they didn't do so in this case.

Mississippi Legal News of Note

Couple of items I wanted to make sure and pass along in case you had missed them

- Ann Hannaford Lamar of Senatobia was appointed to the Mississippi Supreme Court by Governor Haley Barbour to fill departing Justice Kay Cobb's Northern District post. Lamar is a former Circuit Court Judge for the 17th district and former District Attorney. I know very little about Lamar but she looks qualified and has stayed out of the news for anything that might be considered "bad". On a personal not I would like to say I am glad Barbour appointed a female to replace the only female that was on the Court. I'm not a huge feminist supporter but females make up half of the population of the State there should be at least one on the State's Supreme Court.

- former Court of Appeals Judge and current nominee to the 5th Circuit, Leslie Southwick, has had his confirmation process started with the often contentious questioning before the Senate Judiciary Committee. According to some news articles opposite has arisen due to votes Southwick made while on the Court of Appeals. Southwick responded with [paraphrasing] I voted with an opinion that accurately reflected what the law in Mississippi states. I understand the groups that disagree with what these cases held and don't like Southwick's voting (not authoring) these opinions but a Judge's job is to rule on what is the law, not to make the law and if the law is not unconstitutional then there is not much the judge can do; and further if the law is not challenged as being unconstitutional they shouldn't even consider that. I'm not sure of the background on these complaints but what I have seen looks like certain groups are trying to make a problem where there is none to be made. For more discussion on this nomination I recommend googling Judge Southwick's name and there are many articles and blogs out there this week.

Mississippi and the Line-Item Veto

There currently is a debate brewing in Mississippi legal/political circles as Governor Barbour has used a line-item veto to eliminate a 5.5 million dollar expenditure that was passed this past legislative session and Attorney General Jim Hood had objected to this. For articles/editorials regarding the veto see here,Clarion Ledger Editorial, and here, Hattiesburg American Article. The appropriate sections of the Mississippi Constitution appear to be Section 73, Section 72, and Section 69 presented below.

The lines seem to be drawn with Barbour relying on Section 73 of the MS Constitution and Hood relying on the the decision in Barbour v. Delta Correctional Facility Authority, 871 So.2d 703 in which the MS Supreme Court ruled a line-item veto as unconstitutional. My reading of this opinion is it was narrowly tailored to address what appears to be a rather unusual situation with correctional appropriations. I found the dissent by (soon to be departing the Court) Justice Cobb more persuasive and helpful to show that there is also case law supporting the ability to use a line-item veto in certain circumstances. What these cases seem to turn on is whether the bill is an appropriations bill (see Sec. 69) or not. Theoretically all appropriations are supposed to be done only in appropriations bills but bleedover is not that uncommon where legislating is combined with funding. If it is an appropriation then the governor can line-item veto, if not then no line-item option. The bills in question here are HB 1681 and HB 1689 both of which appear to be appropriations bill to me and therefore able to be line-item vetoed.

Section 73. Veto of parts of appropriations bills.

The Governor may veto parts of any appropriation bill, and approve parts of the same, and the portions approved shall be law.

Section 72. Approval or disapproval of bill by Governor; veto override process.

Every Bill which shall pass both Houses shall be presented to the Governor of the state. If he approve, he shall sign it; but if he does not approve, he shall return it, with his objections, to the House in which it originated, which shall enter the objections at large upon its Journal, and proceed to reconsider it. If after such reconsideration two-thirds (2/3) of that House shall agree to pass the Bill, it shall be sent, with the objections, to the other House, by which, likewise, it shall be reconsidered; and if approved by two-thirds (2/3) of that House, it shall become a law; but in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Governor within five (5) days (Sundays excepted) after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevented its return, in which case such Bill shall be a law unless the Governor shall; veto it within fifteen (15) days (Sundays excepted) after it is presented to him, and such Bill shall be returned to the Legislature, with his objections, within three (3) days after the beginning of the next session of the Legislature.

Section 69. Contents of appropriations bills.
General appropriation bills shall contain only the appropriations to defray the ordinary expenses of the executive, legislative, and judicial departments of the government; to pay interest on state bonds, and to support the common schools. All other appropriations shall be made by separate bills, each embracing but one subject. Legislation shall not be engrafted on the appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid.

link to the blog of the cartoonist who did the below cartoon.