Corr-Williams Tobc Co vs. State of MS
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 96- M-00115-SCT
IN RE: CORR-WILLIAMS TOBACCO COMPANY,
LAUREL CIGAR & TOBACCO COMPANY, LONG
WHOLESALE, INCORPORATED, WIGLEY & CULP,
INC. OF GULFPORT, MISSISSIPPI, THE LEWIS
BEAR COMPANY, GENERIC PRODUCTS
CORPORATION, THE AMERICAN TOBACCO
COMPANY, R. J. REYNOLDS TOBACCO COMPANY,
BROWN AND WILLIAMSON TOBACCO
CORPORATION, PHILIP MORRIS INCORPORATED,
LORILLARD TOBACCO COMPANY, THE COUNCIL
FOR TOBACCO RESEARCH, HILL & KNOWLTON,
INC., AND THE TOBACCO INSTITUTE, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
NA
NA
NA
MICHAEL B. WALLACE
OFFICE OF THE ATTORNEY GENERAL
BY: MICHAEL C. MOORE
WILLIAM ALLAIN
RICHARD F. SCRUGGS
CIVIL - OTHER
DISMISSED - 3/13/97
EN BANC.
SMITH, JUSTICE, FOR THE COURT:
¶1. Petitioners, defendants in a law suit pending in the Jackson County Chancery Court, request that
this Court, pursuant to M.R.A.P. 21, grant extraordinary relief by reversing certain interlocutory
decisions of the chancery court. After thorough consideration of the pleadings and the arguments of
both parties, we find that there is no sufficient legal reason that this Court intervene and accept
jurisdiction of this case at this time. Accordingly, we dismiss the petition and the supplemental
petition.
STATEMENT OF FACTS
¶2. On February 20, 1996, Corr-Williams Tobacco Company and numerous other companies and
entities ("Petitioners"), defendants in Cause No. 94-1429 in the Chancery Court of Jackson County,
filed the instant Petition for Writ of Prohibition and/or Mandamus with this Court.
¶3. A brief history of the events in the Chancery Court of Jackson County is helpful. On October 4,
1994, Petitioners filed a Motion for Judgment on the Pleadings, challenging the sufficiency of claims
made by the Respondent in the complaint. On February 21, 1995, the chancellor denied this motion
by order.
¶4. On June 12, 1995, Petitioners filed a motion for partial summary judgment wherein they argued
that the Attorney General ("Respondent") did not have the authority to sue for the recovery of
Medicaid expenditures without the approval, and over the express disapproval, of the Governor or
the Division of Medicaid. A hearing was held in chancery court on June 27, 1995. Chancellor Myers
took the matter under advisement and entered an order on August 25, 1995, denying the motion
without explanation.
¶5. On June 10, 1996, Petitioners filed their Supplemental Petition for Writ of Prohibition and/or
Mandamus with this Court, discussing certain findings of fact and conclusions of law made by
Chancellor Myers in Cause No. 94-1429, filed March 6, 1996, which provided the reasoning behind
his August 25, 1995 order denying the motion for partial summary judgment. Petitioners do not seek
additional relief in their supplemental petition.
¶6. Aggrieved by the decisions of Chancellor Myers, the Petitioners now seek a Writ of Prohibition
and/or Mandamus ordering Chancellor Myers to dismiss those portions of Cause No. 94-1429 that
seek recovery of Medicaid funds.
DISCUSSION OF LAW
WHETHER THE ATTORNEY GENERAL POSSESSES THE AUTHORITY TO SUE
FOR THE RECOVERY OF MEDICAID FUNDS INDEPENDENT OF THE
MEDICAID LAWS AND WITHOUT THE APPROVAL OF THE GOVERNOR AND
THE MISSISSIPPI DIVISION OF MEDICAID WHEN THE LEGISLATURE HAS
EXPLICITLY DETERMINED THAT THE GOVERNOR HAS EXCLUSIVE
AUTHORITY OVER SUCH SUITS.
¶7. The Petitioners argue that this Court should take jurisdicition of this matter and decide the issue
presented for several reasons. Specifically, the Petitioners argue that: (1) other adequate means of
relief are unavailable; (2) deciding this question now would promote judicial efficiency and economy;
(3) immediate review would be in the public interest; and (4) Petitioners have a clear right to the
relief sought. We now address each of the arguments made by the Petitioners.
¶8. Petitioners argue that this Court should correct "clear errors of law" by the chancery court at this
point in the proceedings. In support of their position, Petitioners rely on this Court's opinion in In re
McMillin, 642 So. 2d 1336 (Miss. 1994). McMillin involved statewide elections which were
enjoined two weeks before the election date, and conflicting decisions from different chancellors on
whether the elections could proceed. In McMillin, this Court addressed the matter and granted the
Petition therefore dissolving the preliminary injunction issued by the chancery court. However, we
did so due to the "conflicting orders from co-equal courts and the overriding public importance of the
issue." Id. at 1338. Moreover, in McMillin, this Court found that the chancery court lacked
jurisdiction to issue the preliminary injunction because "chancery courts in this state do not have the
jurisdiction to enjoin elections or to otherwise interfere with political and electoral matters which are
not within the traditional reach of equity jurisdiction." Id. at 1339.
¶9. Unlike McMillin, the case sub judice involves one lawsuit which has been proceeding in one
court since May 1994. Moreover, there has been no showing that the chancery court lacked
jurisdiction or made clear errors of law. The exigent circumstances presented to this Court in
McMillin are simply not present in the case sub judice.
¶10. Petitioners also argue that the instant situation cannot be remedied on appeal if this Court does
not grant the requested relief. Petitioners rely on State v. Maples, 402 So. 2d 350, 352 (Miss. 1981),
where this Court held that "a writ [of prohibition] may issue as an aid to the appellate process by
superior courts to inferior courts to prevent action by an inferior court or judge which cannot be
remedied on appeal." In Maples, this Court held that a circuit judge's refusal to recuse himself in a
criminal case upon motion of the State presented a unique situation where the State would be
without an adequate remedy on appeal. Specifically, we held "if the trial judge has erroneously
refused to vacate the bench and there is a verdict of acquittal or a directed verdict, the defendant in
the criminal case may not be tried again because of the double jeopardy provisions of the
Constitutions of the United States and the State of Mississippi." Id. at 353.
¶11. In the case sub judice, we are not faced with a situation involving either constitutional issues or
the lack of an adequate remedy either through the trial or appellate process. Petitioners have failed to
demonstrate the inability to have any error, assuming error does occur, corrected on appeal.
Therefore, Petitioners' argument that an adequate remedy on appeal is unavailable is simply without
merit.
¶12. Petitioner next alleges that this Court should intervene in the instant matter in order to simplify,
shorten or eliminate proceedings in the chancery court. Petitioners rely on State v. Caldwell, 492 So.
2d 575, 577 (Miss. 1986), where this Court granted a change of venue in a capital case in order "to
promote judicial efficiency and economy." Again, in Caldwell, we were faced with particular facts
and circumstances which involved constitutional issues. Specifically, Caldwell involved the "right of
a defendant to a public trial by an impartial jury of the county where the offense was committed." Id.
at 577. Moreover, we limited our holding in Caldwell to "the particular facts of that case which
required that Caldwell be allowed to reassert his constitutional right." Id.
¶13. The Petitioners simply have not presented circumstances equivalent to those presented either in
Maples or Caldwell which would warrant our intervention at this time. As a result, we find that
judicial efficiency and economy will be best achieved by an orderly procession of this matter through
the chancery court and the appellate process, if necessary. Petitioners also argue that the interest of
the public requires this Court to immediately decide the issue presented due to the conflict between
state officials. While we acknowledge the obvious conflict between two state officials, this Court
finds that the public interest would be better served by the procession of this case to its conclusion in
the appropriate forum. At this time, the appropriate forum to handle the presentation of witnesses
and make findings of fact, if necessary, would be the Chancery Court of Jackson County.
¶14. Petitioners conclude that they are entitled to mandamus because they have shown "[a] clear right
. . . to the relief sought." Petitioners rely on Bd. of Supervisors v. Mississippi State Highway
Comm'n, 207 Miss. 839, 847, 42 So. 2d 802, 805 (1949). However, the writ in that case was not
sought in this Court. Moreover, this Court clearly held that "[t]he writ of mandamus is a
discretionary writ and even in a case where an absolute legal right is shown, the writ will be withheld
whenever the public interest would be adversely affected."
¶15. Because the Petitioners have an adequate remedy through the trial process in the chancery court,
we decline to intervene and accept jurisdiction at this time. We also take this opportunity to state that
the Petitioners' attempt to attack interlocutory decisions made many months ago weighs heavily
against them. The definitive issue of who has the authority and the right to file such a suit, the
Governor or the Attorney General, is an issue which may adequately be decided by this Court on
appeal on the merits. Therefore, it is ordered that the Petition for Writ of Prohibition and/or
Mandamus and Supplemental Petition for Writ of Prohibition and/or Mandamus filed by Petitioners
be dismissed.
¶16. PETITION FOR AN EXTRAORDINARY WRIT OF PROHIBITION DISMISSED.
PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS AND ROBERTS, JJ., CONCUR.
DAN LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION. McRAE AND MILLS,
JJ., NOT PARTICIPATING.
DAN LEE, CHIEF JUSTICE, DISSENTING:
¶17. Petitioners, defendants in a lawsuit pending in the Jackson County Chancery Court, request that
this Court, under M.R.A.P. 21, issue a writ of mandamus and/or prohibition concerning the dismissal
of petitioner's motion for partial summary judgment by the Chancellor. After thorough consideration
of the pleadings and arguments of both parties, and believing that the issues of this case are of such
significant weight and importance, this Court should grant relief by way of review of the denial of the
partial summary judgment by the trial court. Accordingly, I respectfully dissent, and would grant to
the petitioners extraordinary relief.
¶18. The definitive issue in the instant case is not whether the instant tobacco suit should have been
filed, but who has the authority and right to file such a suit. I fully agree that the current action
should have been filed, but strongly believe that the Attorney General did not have the authority or
power to file such an action without authorization from the Office of the Governor, the only agency
given that authority by the State legislature. Using the analogy of the attorney-client relationship, the
Governor and the Medicaid Division occupy the position of the client and the Attorney General
occupies the position of the attorney. Clearly, under our law, the client is the party responsible for the
decision of whether or not to bring a lawsuit. The client authorizes an attorney to file a lawsuit on
his/her behalf. The situation placed before us is that of an attorney blatantly filing lawsuits without
having a client, or at the very least, client authorization. At the core of this tobacco litigation is the
question of who should bring this lawsuit.
¶19. Against this background, the petitioners have come to this Court requesting extraordinary relief
in the face of a prohibited and improper lawsuit. This Court has discretion concerning the granting of
such extraordinary relief. In re McMillin, 642 So. 2d 1336, 1338 (Miss. 1994). This Court has
recognized that extraordinary relief is appropriate to "prevent action by an inferior court or judge
which cannot be remedied by appeal." State v. Maples, 402 So. 2d, 350, 352 (Miss. 1981). In Re
McMillin concerned statewide elections which were enjoined two weeks before the date of the
election, and involved conflicting decisions from different chancellors on whether the elections could
proceed. In re McMillin , 642 So. 2d at 1337-38. The majority contends that In re McMillin is not
persuasive in the instant case because the exigent circumstances presented to this Court in In re
McMillin are not present here. In re McMillin is indeed persuasive because the instant case presents
six issues which, taken together, establish exceptional, extraordinary, and exigent circumstances such
as to satisfy In re McMillin.
¶20. First, the instant case presents a clear violation of the doctrine of separation of powers. Article
6, Section 173, of the Mississippi Constitution created the office of the Attorney General. Case law
and statute provide that Section 173 vests the Attorney General with the powers of the office
possessed by the office at common law. Capital Stages, Inc. v. State ex rel. Hewitt, 157 Miss. 576,
588-94, 128 So. 759, 762 64 (1930); Kennington-Saenger Theatres, Inc. v. State ex rel. District
Attorney, 196 Miss. 841, 865-66, 18 So. 2d 483, 486 (1944); Miss. Code Ann. § 7-5-1 (1991). The
Attorney General has the power to bring, control and manage litigation on behalf of the State when
the subject matter is determined to be of statewide interest and significance. Id. This Court, however,
has held that the Attorney General's power is not absolute: "all public officers, including the Attorney
General, are subordinate to the laws of this State." Frazier v. State, 504 So. 2d 675, 690 (Miss.
1987). See also State ex rel. Patterson v. Warren, 254 Miss. 293, 308-09, 180 So. 2d 293, 300
(1965) (The attorney general clothed with all the common law powers of the office "except insofar as
they have been expressly restricted or modified by statute or the state constitution . . . ."). In other
words, where the legislature has restricted the Attorney General's powers by granting such powers to
another entity, the Attorney General's authority is also so limited.
¶21. Congress , in enacting the Medicaid bill, required that the responsibility for a state's entire
Medicaid program be vested in a single state agency. 42 U.S.C. § 1396(a)(5) (1988). In Mississippi,
the legislature has enacted statutes which designate the Office of the Governor, in conjunction with
the Medicaid Division, as that single state agency. Miss. Code Ann. §§ 43-13-101 et seq. (1993). The
statutory scheme specifically vests the authority over the decision whether to file Medicaid
reimbursement suits in the Medicaid division within the Office of the Governor. Miss. Code Ann. §
43-13-125(1) (1993). In other words, the Mississippi legislature has given the Office of the Governor
the sole and exclusive authority of deciding whether to file lawsuits such as in the case sub judice.
¶22. The Attorney General, without authorization of the Office of the Governor and in direct
contravention of the legislatively enacted Mississippi Medicaid statute, has filed the instant thirdparty reimbursement suit. By so doing, the Attorney General is taking for himself power and
authority given by the legislature specifically and solely to the Governor. The Attorney General's
commandeering of legislative authority and directives is a clear violation of the doctrine separation of
powers and presents a clear constitutional question.
¶23. Second, extraordinary relief should be granted in this case because there is no other adequate
means of relief for the petitioners. The Attorney General has violated the Medicaid statutes by filing
this lawsuit and forcing the petitioners to defend themselves in unlawful litigation. The petitioners
face great expense if required to defend themselves in a prohibited proceeding improperly brought by
the Attorney General acting ultra vires (the expense to the State would also be immense). The only
way to remedy the Attorney General's breach of the Medicaid law is for this Court to grant
extraordinary relief at this time.
¶24. Third, extraordinary relief is proper in this case because the petitioners have already suffered and
stand to suffer irreparable harm as a result of the Attorney General's improper and unauthorized
lawsuit. In June of 1996, the Liggett Group, Inc. (Liggett), an original petitioner in this cause,
withdrew. Liggett, facing the choice between exorbitant defense expenses and settlement, chose
settlement, thereby suffering irreparable harm, i.e., essentially being forced into settling this unlawful
and improper lawsuit. All remaining petitioners are facing this unsavory and disconcerting choice. If
enough petitioners choose settlement over and against huge and unwarranted costs in defending this
unauthorized lawsuit, the remaining petitioners may find themselves forced to follow Liggett's course
of action -- settlement. This irreparable harm cannot be remedied on appeal.
¶25. Fourth, extraordinary relief should be granted in this case because resolving the scope of the
Attorney General's authority in this massive and complicated case would promote judicial efficiency
and economy. See State v. Caldwell, 492 So. 2d 575, 577 (Miss. 1986). The grant of relief would
certainly streamline, if not dispose of entirely, the instant case, reduce the amount of discovery, and,
at the very least, shorten any possible trial. Judicial resources would be greatly conserved.
¶26. Fifth, immediate review of this case would clearly be in the public interest. Both the Governor
and the Attorney General maintain their right to exclusive decision-making authority over whether to
prosecute Medicaid reimbursement suits. The Governor and Attorney General are engaged in a
protracted and public struggle over this issue which places the State in negative light, impacting the
interest of each citizen of this State. An expeditious resolution of this issue is also necessary to
maintain the public's waning confidence in government. As we stated in In Re McMillin, "[i]n light
of the conflicting orders and the overriding public importance of the issue, the Court addressed the
matter and granted [relief]." In re McMillin, 642 So. 2d 1336, 1338 (Miss. 1994) (emphasis added).
No interest would be served by delaying deliberation of this issue until final judgment is entered in the
court below.
¶27. Sixth, because the Attorney General plainly did not have the authority to bring this action for
Medicaid reimbursement without the approval of the Governor and the Medicaid Division, this suit is
unauthorized and improper; therefore, the petitioners have a clear right to the relief sought. Board of
Supervisors v. Mississippi State Highway Comm'n, 207 Miss. 839, 847, 42 So. 2d 802, 805 (1949).
Extraordinary relief is proper in this case.
¶28. The above reasons, taken together, provide the extraordinary and exigent circumstances which,
under In Re McMillin, make extraordinary relief appropriate. Because the above issues are weighty
and serious, I find that the Court should grant relief by way of review of the denial of the partial
summary judgment by the trial court. Accordingly, I dissent.
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