author: KITCHENS, Justice, COLEMAN, Justice, WALLER, Chief Justice,

text:
    Brian Bradley BRONK v. Margaret Samantha Gaddis HOBSON.
    No. 2013-IA-00950-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2014.

      John William Nisbett, Michael A. Heil-man, Jackson, Lindsey Alexandra Boyd, Summit, attorneys for appellant.
    Michael Chad Moore, Flowood, attorney for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. Today we are called upon to determine whether a county court had jurisdiction to determine child custody in a paternity action in 1999. We hold that it did not, and that county courts do not have jurisdiction to make child custody determinations ab initio. Accordingly, we must reverse the custody determination of the County Court of Lauderdale County and remand the case to the county court with instructions to transfer the proceedings to chancery court.

BACKGROUND AND ANALYSIS

¶ 2. In 1999 the County Court of Laud-erdale County determined that Brian Bronk was the natural father of Margaret Hobson’s minor child. In that same judgment, the county court granted sole custody to Hobson. Soon after the child’s birth, the county court entered a judgment ordering Bronk to pay child support to Hob-son in the amount of $400 per month. In 2013, Bronk presented an ore tenus motion in which he contended that all of the orders and judgments related to child custody were invalid because the county court never had jurisdiction to determine custody in the first place. The county court denied the motion, and Bronk filed a petition for interlocutory appeal with this Court, which we granted.

¶ 3. The sole issue Bronk raises on appeal is whether the county court had jurisdiction to make child custody determinations in this case. As this Court sits in the same position as the trial court when it reviews questions of jurisdiction, the standard of review for jurisdictional issues is de novo. City of Cherokee v. Parsons, 944 So.2d 886, 888 (¶ 6) (Miss.2006). “Jurisdiction is decided based on the existing facts at the time the action is commenced.” Joshua Properties, LLC v. D1 Sports Holdings, LLC, 130 So.3d 1089, 1092 (¶8) (Miss.2014).

? 4. To determine whether county courts and chancery courts share original jurisdiction over custody matters, we must analyze their respective sources of jurisdiction. The Mississippi Constitution granted full jurisdiction to chancery courts in matters of equity, divorce and alimony, minors’ business, and any other types of cases in which chancery courts retained jurisdiction when the Constitution was promulgated. Miss. Const, art. 6, § 159. Bronk argues that granting full jurisdiction to the chancery courts in matters of equity and minors’ business grants exclusive jurisdiction over custody matters, and relies on this Court’s statement that “[u]n-der Mississippi law, chancery court has continuous and exclusive jurisdiction over custody proceedings.” Helmert v. Biffany, 842 So.2d 1287, 1291 (¶ 20) (Miss.2003) (emphasis added). According to Bronk, this clear language settles the issue.

¶ 5. It is not that simple, however. This Court has made it clear that “full” jurisdiction and “exclusive” jurisdiction have two very different meanings. In fact, “[t]his Court has rejected the assertion that Article 6, Section 159 of the Mississippi Constitution conferred exclusive jurisdiction in all matters of equity when it conferred full jurisdiction over such matters.” Germany v. Germany, 123 So.3d 423, 427 (¶ 9) (Miss.2013) (citing W. Horace Williams Co. v. Fed. Credit Co., 198 Miss. 111, 21 So.2d 582, 583 (1945)). In that sense, full jurisdiction is that which may be shared with “such inferior courts as” the Legislature, in its constitutional prerogative, deems necessary. See Miss. Const, art. 6, § 172. Exclusive jurisdiction, on the other hand, is ironclad, and may not be removed from or shared by those courts to which the Constitution has granted it.

¶ 6. Accordingly, the full grant of equitable jurisdiction to chancery courts may be shared with such inferior courts as the Legislature deems necessary. The county court is one such court; and, as it is a creature of statute, its jurisdiction is prescribed exclusively by the Legislature.

¶ 7. While a statute unequivocally grants county courts jurisdiction over paternity determinations, no such specific statute exists regarding child custody. Accordingly, we must analyze the general grant of county court jurisdiction found in Mississippi Code Section 9-9-21. For our purposes, the relevant part of the statute states that the county court “shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Two Hundred Thousand Dollars ($200,-000.00).... ” Miss.Code Ann. § 9-9-21 (Rev. 2014). Accordingly, if the value of the thing in controversy is $200,000 or less, the county court has jurisdiction. Our task is to decide whether that grant of jurisdiction brings the determination of child custody under the ambit of the county court.

¶ 8. The problem immediately presented is that the value of the custody of a child is incalculable, i.e., it cannot be expressed in terms of pecuniary value. None other than Chief Justice John Marshall of the United States Supreme Court wrote that the Court over which he presided was without jurisdiction to hear a guardianship dispute, as the matter in controversy in federal court at the time had to exceed $2,000 and “[t]he office of guardian is of no value.... ” Ritchie v. Mauro, 27 U.S. 243, 244, 2 Pet. 243, 7 L.Ed. 411 (1829). The Supreme Court later held that it was without jurisdiction to hear a child custody dispute, as “no test of money value [could] be applied[,]” and the case therefore did not meet the jurisdictional requirement of $2,000. Barry v. Mercein, 46 U.S. 103, 120, 5 How. 103, 12 L.Ed. 70 (1847). Therefore, it is fair to say that the value of child custody is neither less nor more than any dollar amount, but, rather, it is outside the bounds of monetary value altogether. Historically, America’s federal courts did not assume jurisdiction over such matters because they had been granted jurisdiction only in cases in which a monetary value could be determined, and our judicial forebears reasoned that there are some areas of the law in which a monetary value test for jurisdiction has no utility, and that the custody of children is one of them.

¶ 9. Here, the jurisdiction of county courts is defined inversely from the jurisdiction of the federal courts. Instead of being granted jurisdiction when the amount in controversy is greater than some threshold value, county courts retain jurisdiction when the amount in controversy is not greater than $200,000. Thus, it can be argued that the value of child custody, which is incalculable, technically does not exceed the value of $200,000, since it has no monetary value. This would mean that child custody is a matter within the jurisdiction of county courts.

¶ 10. We are not persuaded by that logic, however. The more reasonable holding is that the language of the statute grants jurisdiction to county courts only in the context of matters in which the things in controversy have values which can be determined. The custody of a human child does not fit into that definition. Although the value of the custody of a child cannot exceed the $200,000 limit, neither can it be within the $200,000 limit. Custody simply is a different type of legal commodity that cannot be defined in dollars and cents. Indeed, for most people, the value of the custody of their child is incalculable precisely because no amount of money could ever satisfy it. Put another way, when jurisdiction is defined by the dollar value of the thing in controversy, jurisdiction has not been granted where the thing in controversy has no dollar value, or cannot be expressed in terms of financial value.

¶ 11. Accordingly, we find that Section 9-9-21 grants county courts jurisdiction over all matters in law and equity wherein the value of the thing in controversy is capable of being expressed in terms of monetary value, and that value does not exceed $200,000. Absent explicit statutory language to the contrary, this does not include child custody determinations. The Legislature is free to grant, affirmatively and clearly, jurisdiction over child custody matters to county courts, but it has not done so.

¶ 12. However, Hobson argues that a 2013 amendment to Section 93-9-15 unequivocally brought child custody into the jurisdiction of the county courts. Section 93-9-15, which granted jurisdiction to county courts to adjudicate paternity, was amended by Senate Bill 2010 in 2013, which was titled “AN ACT TO AMEND SECTION 93-9-15, ... TO CLARIFY THE JURISDICTION OF THE COURT OVER THE AWARD OF CUSTODY IN THE COURSE OF A PATERNITY PROCEEDING AND TO AUTHORIZE REIMBURSEMENT TO MEDICAID FOR EXPENSES OF PREGNANCY AND CONFINEMENT; AND FOR RELATED PURPOSES.” S.B.2010, 2013 Leg., Reg. Sess. (Miss.2013). As amended, the statute states, in pertinent part, “The county court, the circuit court, or the chancery court has jurisdiction of an action under Sections 93-9-1 through 93-9-49, and all remedies for the enforcement of orders awarding custody or for expenses of pregnancy and confinement for a wife.... ” Miss.Code Ann. § 93-9-15 (Rev. 2013) (amendment emphasized).

¶ 13. Bronk argues that the amendment simply clarified the jurisdiction of county courts with regard to their ability to enforce custody orders and determinations, not make them. Hobson contends that the amendment clarifies that the county court may hear child custody issues in the course of a paternity proceeding. She also argues that, as it is a clarification of existing law, the Legislature intended the bill to apply retroactively.

¶ 14. The bill states that it “shall take effect and be in force from and after its passage.” S.B. 2010, 2013 Leg., Reg. Sess. (Miss.2013). Accordingly, the bill was effective on the date of its passage, April 24, 2013, and it does not apply retroactively. Further, our determinations of jurisdiction are “decided based on the existing facts at the time the action is commenced.” Joshua Properties, 130 So.3d at 1092 (¶ 8). Senate Bill 2010 is not applicable to this dispute.

CONCLUSION

¶ 15. Although chancery courts do not have exclusive jurisdiction over child custody matters, the Legislature has not granted the chancery courts’ full jurisdiction over custody matters to the county courts. Section 9-9-21 grants county courts concurrent jurisdiction with chancery courts “in all matters of law and equity” only where the thing in controversy has a value that can be determined, and where that value does not exceed $200,000. The value of child custody is incalculable and therefore is not a subject that was included in the Legislature’s grant of chancery jurisdiction to the county courts of this State. Senate Bill 2010 is inapplicable to this case, as it has only prospective application, and it did not expand the jurisdiction of the county courts in any case.

¶ 16. “If the court is without jurisdiction — subject matter or personal — no one is bound by anything the court may say regarding the (de)merits of the case.” Petters v. Petters, 560 So.2d 722, 723 (Miss.1990). The County Court of Lauderdale County was without jurisdiction to adjudicate custody in this case. Accordingly, its original child custody determination, as well as any and all subsequent custody decisions or modifications, are void and are hereby vacated. We remand this case to County Court of Lauderdale County with instructions to transfer it to the Chancery Court of Lauderdale County for a custody determination.

¶ 17. REVERSED AND REMANDED.

RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ, CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. WALLER, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.; DICKINSON, P.J., AND COLEMAN, J., JOIN IN PART.

COLEMAN, Justice,

dissenting-.

¶ 18. The majority concludes that Section 9-9-21 grants county court jurisdiction only where the thing in controversy has a dollar value between zero and $200,000. The jurisdictional statute in question requires an affirmative showing that the value of the thing in controversy exceeds $200,000 before the county court does not have jurisdiction. The value of child custody is a nullity; therefore, under the plain language of Section 9-9-21 it simply cannot be said to exceed $200,000. Accordingly, I respectfully dissent.

¶ 19. As the majority notes, the United States Supreme Court previously has held that child custody determinations are of no ascertainable pecuniary value. Barry v. Mercein, 46 U.S. 103, 118, 5 How. 103, 12 L.Ed. 70 (1847) (citing Ritchie v. Mauro, 27 U.S. 243, 244, 2 Pet. 243, 7 L.Ed. 411 (1829)). In Ritchie, the Court stated, “The office of guardian [of a minor child] is of no value.” Ritchie, 27 U.S. at 244. Later, in Barry, the Court relied on Ritchie in holding that “no test of money value can be applied” for custody disputes. Barry, 46 U.S. at 120. Thus, custody has no value because its value cannot be ascertained. For legal controversy purposes, the amount of value of custody is nothing. However, by “nothing,” the Barry and Rit-chie Courts did not mean the value was equal to zero. Rather, the value defies any calculation whatsoever and is a nullity. The majority characterizes the value of custody as “outside the bounds of monetary value altogether,” (Maj. Op. ¶ 8) and I agree. The majority concludes that, because the value is outside the bounds of monetary value, child custody is not within the jurisdiction of county courts. Here, I disagree. The majority’s conclusion ignores the plain language of the statute.

¶ 20. Section 9-9-21 states in pertinent part, “[T]he county court shall be as follows: ... it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity....” Miss.Code Ann. § 9-9-21 (Rev. 2014). I am of the opinion that if the statute stopped here, the county court would have broad, concurrent jurisdiction in all matters of law and equity or, in other words, in everything. However, the Legislature added one contingency, stating, “[W]herein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Two Hundred Thousand Dollars ($200,000.00).... ” Miss.Code Ann. § 9-9-21 (emphasis added). By limiting the amount in controversy to not exceed $200,000, the Legislature gave county courts the whole universe of jurisdiction with the sole exception being where the thing in controversy exceeds $200,000.

¶21. Section 9-9-21 notably differs from 28 U.S.C.A. Section 1382, defining federal diversity jurisdiction, and the difference helps illuminate my disagreement with the majority. Section 1332 states: “The district court shall have original jurisdiction ... where the matter in controversy exceeds the sum or value of $75,000....” 28 U.S.C.A. § 1332 (Supp. 2014) (emphasis added). Under Section 1332, the value of the matter in controversy must exceed $75,000. Whereas, under Section 9-9-21, the value must not exceed $200,000. If the Legislature had chosen to draft Section 9-9-21 in a manner similar to Congress’s wording of Section 1332, then the majority would be correct, but it did not.

¶ 22. Drawing comparison between Section 1332 and the statutes at issue in Barry and Ritchie highlights the effect of the “must exceed” language on the jurisdictional limit. In Ritchie, the Court held that where the amount in controversy must exceed $2,000, the Court did not have jurisdiction because “the value in controversy [was] not ... sufficient to entitle the party by law to claim an appeal.” Ritchie, 27 U.S. at 244. Similarly, in Barry, the Court applied the Judiciary Act of 1789, Chapter 20, Section 22 and found no jurisdiction because the matter in dispute must exceed the value of $2,000, and when the matter is of no calculable value, the Court lacks jurisdiction. Barry, 46 U.S. at 119-20 (citing Judiciary Act, ch. 20, § 22, 1 Stat. 73, 84-85 (1789)).

¶ 23. The above-described federal jurisdictional statutes contain positive requirements that the amount in controversy be greater than' X. The value of child custody defies calculation and is a nullity. Therefore, it cannot be greater than X. Ergo, under a positive requirement jurisdictional statute, there can be no jurisdiction. On the other hand, Mississippi’s county court jurisdictional statute contains a negative requirement that the amount in controversy not be greater than Y. Stated differently, the value of the thing in controversy must exceed Y for the county court not to have jurisdiction. The value of child custody defies calculation and is a nullity. Therefore, it cannot be greater than Y. Ergo, under the negative requirement jurisdictional statute, the county court does have jurisdiction. In other words, a thing in controversy of no calculable value shall fall within the jurisdiction of the county court because the value cannot be said to exceed $200,000, which it must in order to deprive the county court of jurisdiction under the statute.

¶ 24. As a final note, the Court has, as Bronk points out, included language in some of our opinions that is fairly read to give chancery courts exclusive jurisdiction over all child custody matters. However, given the opportunity to review the Court’s pronouncements, I note that they result from pronouncements in Ladner v. Ladner, 206 So.2d 620 (Miss.1968), abrogated on other grounds by Bubac v. Boston, 600 So.2d 951, 954 (Miss.1992), which, over time, have been inadvertently broadened by the Court to hold that chancery court has exclusive jurisdiction over any child custody matter. Ladner held that, once a court has exercised jurisdiction over a case, that court then retains continuing, exclusive jurisdiction over it. Ladner, 206 So.2d at 624-25. The Ladner Court explained:

It seems to be clear now, however, that the general rule — supported by the great weight of authority, as stated in or inferrable from the cases involving the questions — that juvenile jurisdiction acquired by a court in divorce proceedings over the subject of the custody and maintenance of the child or children of the parties to the divorce suit is not only continuing, but is also exclusive and precludes any other court in the same state or sovereignty from thereafter acquiring or exercising jurisdiction over the same subject.

Id. The Ladner Court went on to state that, because the action in that case was first filed in the Hinds County Chancery Court, that court “had the exclusive jurisdiction of the custody of the children here involved, as between Mr. and Mrs. Ladner. This does not mean, however, that the child could not be tried in the juvenile court or even in a criminal court if the facts warranted it.” Id. at 625. Because Ladner was in the context of a chancery court’s child custody determination, the statements have, over time, been misinterpreted as simply declaring that the chancery court has exclusive jurisdiction over child custody, which, in my opinion, unless we ignore or judicially amend the county court jurisdictional statute, is not the case.

¶ 25. I am of the opinion that a thing in controversy incapable of valuation cannot be said to have a value in excess of 200,000 dollars. I would hold that, under Section 9-9-21, county court does have jurisdiction over child custody matters following a paternity action.

DICKINSON, P. J., AND KING, J., JOIN THIS OPINION.

WALLER, Chief Justice,

concurring in part and dissenting in part:

¶ 26. The fundamental issue before the court today is whether county courts have the jurisdiction to award child custody. The majority finds county courts have no such jurisdiction because, in the majority’s opinion, the value of child custody is incalculable. I disagree.

¶ 27. It must be first noted that this action arose as a paternity suit in the county court. County courts have been authorized to determine paternity in this state since the passage of the Uniform Act on Paternity in 1962. Miss.Code § 383-05 (1942) (predecessor to Miss.Code Ann. § 93-9-15 (Rev. 2013), which grants county court jurisdiction over paternity matters found in Sections 93-9-1 through 93-9-49). It is nonsensical and contrary to the intent of Mississippi Code Section 9-9-21, to recognize the authority of a county court to determine paternity and yet not confer to that same court the authority to decide the concomitant issues of custody and child support. See Miss.Code Ann. § 9-9-21 (Rev. 2014). To say a county court may not take such action totally compromises the concept of judicial economy and the fair and efficient administration of justice and especially burdens those who can least afford to litigate.

¶ 28. As the majority notes, county courts are a creation of the Legislature. Therefore, to resolve this matter, we must look to the statute that grants the county courts jurisdiction. Mississippi Code Section 9-9-21 states, in pertinent part, that the county court “shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Two Hundred Thousand Dollars ($200,000.00)....” Miss.Code Ann. § 9-9-21 (Rev. 2014). The plain language of the statute clearly indicates that the Legislature intended the county courts to have concurrent jurisdiction with the chancery courts in all equity matters up to the $200,000 limit.

¶ 29. The majority reads this $200,000 limit to say that county courts lack jurisdiction in custody matters because county courts can exercise jurisdiction only over a thing with a value that can be calculated. Of course, nowhere in the statute does it say this. The more logical conclusion, and what is more in line with the statutory language, is that county courts have jurisdiction over all equity matters, unless there is some thing in controversy with a determined value more than $200,000. See Miss.Code Ann. § 9-9-21 (Rev. 2014). And because a precise calculation of the value of child custody currently eludes our courts — or as the majority would prefer, has “no calculable value” — there is nothing in such a case with a determined value exceeding $200,000. See Miss.Code Ann. § 9-9-21. Therefore, I would find the county courts have jurisdiction over child-custody matters, notwithstanding the $200,000 limit. See id.

¶ 30. Further, in part because the dollar value of custody eludes easy calculation, I would find that the jurisdictional dollar-amount limitation in Section 9-9-21 is inapplicable in custody matters. See Barry v. Mercein, 46 U.S. (5 How.) 103, 118, 12 L.Ed. 70 (1847). Determinations of child custody are squarely within the county court’s equitable power and need not involve a monetary determination of the value of custody. Miss.Code Ann. § 9-9-21 (Rev. 2014); Germany v. Germany, 123 So.3d 423, 428 (Miss.2013) (determining whether a claim is at law or in equity, “one must look at ... the nature of the controversy and the relief sought.”); see also Wade v. Lee, 471 So.2d 1213 (Miss.1985).

¶ 31. In Wade, for example, we recognized a county court’s jurisdiction to enter temporary child-custody modifications in habeas corpus proceedings. Id. at 1217. The opinion in Wade contained no discussion of the amount in controversy, which does not seem to have been raised in that case. In Wade, the county court’s jurisdiction derived from Mississippi Code Section 9-9-23, which grants county-court judges authority to hear habeas corpus matters. Id. This Court has long held that this authority includes questions of child custody. Id. It is therefore a logical conclusion that it has been the long-held view of the state Legislature and this Court that county courts have jurisdiction over child-custody matters, irrespective of the $200,000 limit in Section 9-9-21. See id.; Miss. Code Ann. § 93-9-15 (Rev. 2013).

¶ 32. Furthermore, this Court previously has held that Section 159 of the Mississippi Constitution does not bestow exclusive jurisdiction over all matters in equity to the chancery court; rather the state Constitution grants the chancery court full jurisdiction. Germany, 123 So.3d at 427. Therefore, Section 9-9-21 is not in conflict with the Mississippi Constitution.

¶ 33. In sum, based on the language in Sections 93-9-15, 9-9-21, and 9-9-23, and the holdings in the cases cited above, I would find that our able and competent county courts have jurisdiction over child-custody matters arising from paternity actions, and the $200,000 jurisdictional limit is inapplicable. See Miss.Code Ann. §§ 9-9-21-23 (Rev. 2014); Barry, 46 U.S. at 118; Wade, 471 So.2d at 1217.

Senate Bill 2010

¶ 34. I do agree with the majority that Senate Bill 2010 does not apply retroactively. See Mladinich v. Kohn, 186 So.2d 481, 483 (Miss.1966) (finding that statutes apply retroactively only when the language of the statute specifically indicates such intent). I would therefore find that any discussion of that bill in the instant case is moot.

Conclusion

¶ 35. For the reasons provided above, I would affirm all of the Lauderdale County Court orders and judgments regarding child custody in the current case and remand for further proceedings. Therefore, I respectfully concur in part and dissent in part.

KING, J., JOINS THIS OPINION. DICKINSON, P.J., AND COLEMAN, J., JOIN THIS OPINION IN PART.

      . "The county court, the circuit court, or the chancery court has jurisdiction of an action under Sections 93-9-1 through 93-9-49-" Miss.Code Ann. § 93-9-15 (Rev. 2013).

      . However, as its value is not monetary, but something else altogether, child custody cannot be said to be worth less than $200,000 either. To say that child custody does not exceed a dollar amount is like saying that an inch does not exceed an ounce. The two metrics have nothing to do with each other: length does not contemplate weight, nor does weight contemplate length. In that same sense, it could be said that money does not contemplate love, nor love money. Any grant of jurisdiction in terms of one has nothing to do with the other.

      . I disagree that the value of child custody is incalculable, but I do acknowledge that it is not something easily calculated by courts. See Margaret F. Brining & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 Ohio St. J. On Disp. Resol. 279 (1993); Ritchie v. Mauro, 27 U.S. (2 Pet.) 243, 244, 7 L.Ed. 411 (1829); Barry v. Mercein, 46 U.S. (5 How.) 103, 118, 12 L.Ed. 70 (1847). Furthermore, to hold that child custody defies calculation, in my opinion, would ignore significant advances in the field of economics since the times of Chief Justice John Marshall. See e.g. Gary S. Becker, A Treatise on the Family (Harvard University Press ed. 1993); Richard A. Posner, Economic Analysis of Law (8th ed. 2011). A reasonable calculation would involve numerous factors including the cost of raising the child, the value the parent places on custody (measured perhaps by the amount parties are willing to spend on litigating child custody, among other things), the negative impact on earnings on a custodial parent and the associated opportunity costs (e.g., working fewer hours in order to raise the child and the subsequent reduction in potential earnings and investment returns), the potential amount of child support, the monetary value of any services the child provides the parent, any income the child earned, just to name a few. See Mark Lino, Expenditures on Children by Families, 2013, U.S. Department of Agriculture, Center for Nutrition Policy and Promotion. Miscellaneous Publication No. 1528-2013, available at http://www.cnpp. usda.gov/sites/default/files/expenditures_on_ children_by_families/crc2013.pdf (last visited Dec. 2, 2014) (estimating the cost of raising a child born in 2013 to be $245,000, excluding college expenses).


source: Caselaw Access Project

author: KING, Justice, RANDOLPH, Presiding Justice, KITCHENS, Justice,

license: Public Domain

text:
    Rebecca HENTZ a/k/a Emily Rebecca Hentz v. STATE of Mississippi.
    No. 2013-CA-01217-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.

      Tommy Wayne Defer, Water Valley, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
   KING, Justice,

for the Court:

¶ 1. This Court is presented with the following issue: whether a convicted felon is entitled to an expungement of her conviction after receiving an executive pardon. Because there is no statutory authority in Mississippi for the courts to order an ex-pungement under these circumstances, we affirm the trial court’s order denying the request for expungement in today’s case.

FACTS

¶ 2. On March 10, 2000, the Tallahat-chie County Grand Jury indicted Rebecca Hentz for one count of conspiracy to manufacture methamphetamine and two counts of attempt to manufacture methamphetamine. On September 25, 2000, Hentz pleaded guilty to one count of attempt to manufacture methamphetamine. The Circuit Court of the First Judicial District of Tallahatchie County sentenced Hentz to thirty years, suspended, unsupervised probation, and a $5,000 fine. The trial court remanded to the file the other counts in Hentz’s indictment.

¶ 3. On January 10, 2012, Governor Haley Barbour granted Hentz a “full, complete, and unconditional pardon” for the attempt-to-manufacture-methamphetamine conviction. Later in 2012, on October 2, Hentz filed a Motion to Expunge Record, claiming that the records of her conviction should be expunged because she had received a pardon. On May 20, 2013, Hentz filed an Amended Motion to Expunge Record, which included additional support for the contention that the records of her conviction should be expunged. After hearing oral argument from Hentz’s counsel, the trial court denied her motion. Hentz then timely appealed to this Court.

ANALYSIS

¶ 4. Hentz raises one issue on appeal: whether a convicted felon may have her criminal record expunged after receiving an executive pardon.

¶ 5. Expungement is statutory in nature, and the Mississippi Legislature has “authorized expungement of criminal offender records in limited cases.... ” Caldwell v. State, 564 So.2d 1371, 1372 (Miss.1990). As an example, Mississippi Code Section 99-19-71 permits criminal defendants to apply for expungement in a number of circumstances: (1) persons convicted of a misdemeanor as a first offender; (2) persons convicted of certain felonies as a first offender; (3) and persons in “any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” See also Miss. Code Ann. § 99-15-59 (Rev. 2007) (expungement of misdemeanor charges); Miss.Code Ann. § 99-15-57(2) (Rev. 2007) (“Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.”); Miss.Code Ann. § 99-23-28 (Rev. 2007) (expungement upon completion of drug court program).

¶ 6. Hentz concedes that there is no statutory provision for expungement in cases of a pardon. Rather than claiming she is statutorily entitled to have her criminal record expunged, Hentz claims that the nature of a pardon itself should permit the expungement. In support of this proposition, Hentz quotes Jones v. Board of Registrars, 56 Miss. 766 (1879). In Jones, a convicted felon received a presidential pardon for federal embezzlement charges and subsequently was denied voter registration. Id. at 766. Finding that Jones might register to vote after the pardon, this Court stated:

If granted after conviction, [the pardon] removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.... A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. A pardon of treason or felony, even after an attainder, so far clears the party from the infamy, and all other consequences thereof, that he may have an action against any who shall afterwards call him traitor or felon; for the pardon makes him, as it were, a new man.

Id. at 768 (internal citations and quotations omitted). Although Jones discusses the after-effects of pardon, it does not specifically address expungement. See id.

¶ 7. Hentz also cites Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931), in support of her contention that the nature of a pardon should permit the trial court to expunge her criminal record. While Cris-ler does state that a “full pardon absolves the party from all the legal consequences of his crime and his conviction, direct and collateral; including the punishment, whether of imprisonment pecuniary penalty, or whatever else the law has provided;” the opinion expressly limits itself to cases of attorney disbarment. Id. at 103-04 (quoting 8 Bishop’s Criminal Law § 916) (“What we here hold, and all that we do hold, is that a full pardon absolves an attorney at law from all the consequences of an order of disbarment....”).

¶ 8. Jones, 56 Miss. 766, and Crisler, 159 Miss. 247, 132 So. 103, both cite Ex parte Garland, 71 U.S. 333, 4 Wall. 333, 18 L.Ed. 366 (1866), in which the United States Supreme Court also concluded that pardon “releases the punishment and blots out the existence of guilt.” The language in Garland, however, has since been held to be dicta; and more recent caselaw holds that a pardon does not “blot out” the existence of guilt:

But modern case law emphasizes ... that this historical language was dicta and is inconsistent with current law. See In re North, 62 F.3d 1434, 1437 (D.C.Cir.1994). A pardon in no way reverses the legal conclusion of the court; it “does not blot out guilt or expunge a judgment of conviction.” North, 62 F.3d at 1437;. see also Nixon v. United States, 506 U.S. 224, 232, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (“a pardon is in no sense an overturning of a judgment of conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915) (a pardon “carries an imputation of guilt”). The effect of a pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon, 506 U.S. at 232, 113 S.Ct. 732; Bjerkan v. United States, 529 F.2d 125, 127-28 (7th Cir.1975).

Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir. 2005) (emphasis in original); see also Fletcher v. Graham, 192 S.W.3d 350 (“[WJhile a pardon will foreclose punishment of the offense itself, it does not erase the fact that the offense occurred, and that fact may later be used to pardonee’s detriment.”).

¶9. Further, recent caselaw supports the contention that, absent statutory authority, expungement is not permitted after a pardon. In Eubanks v. State, 53 So.3d 846 (Miss.Ct.App.2011), a defendant with a driving-under-the-influence conviction requested that the court consider an “equitable expungement” in cases where expungement was not statutorily provided. The Court of Appeals rejected this argument, finding that trial courts had the power to expunge a felony conviction pursuant to a guilty plea only under certain statutory conditions. Id. at 848. See also Turner v. State, 876 So.2d 1056, 1059 (Miss.Ct.App.2004) (recognizing that circuit courts lack inherent power to order expungement of criminal records).

¶ 10. Although this Court has not directly addressed the issue presented in today’s case, the Mississippi Attorney General’s Office has addressed this exact issue. See Smith, 2012 Op. Att’y Gen. 337, 2012 WL 3611766 (Miss.A.G. Aug. 10, 2012). The Attorney General was presented with the following question: “Does receiving a pardon from the Governor allow the defendant to then request that the record of the conviction, which includes the arrest, indictment, conviction, and sentence be expunged?” Id. The opinion recognizes that “there is no statutory or constitutional authority providing for the expungement of an offense as a result of a pardon by the Governor.” Id. The dissent emphasizes that Article 5, Section 124 of the Constitution of the State of Mississippi empowers the Governor to grant reprieves and pardons, and that to give that section effect, an ex-pungement must go part and parcel with the pardon. However, Article 5, Section 124, unlike the U.S. constitution and that of some other states, limits the Governor’s pardon power by mandating that “no pardon shall be granted before conviction.” Miss. Const, art. 5, § 124. Thus, the constitution specifies that no pardon may be granted until a record of the crime is created via conviction. The Legislature has not chosen to negate this record required by the constitution by providing for expungement in the case of a pardoned offense, indicating that the history behind the offense should be retained unless or until the Legislature provides otherwise.

¶ 11. Because there is no statutory basis in Mississippi for an expungement after a criminal defendant receives an executive pardon, the trial court in today’s case did not err in denying Hentz’s motion to expunge her criminal record. As such, we affirm the judgment of the trial court.

CONCLUSION

¶ 12. For the reasons discussed above, we affirm the judgment of the Circuit Court of the First Judicial District of Tal-lahatchie County.

¶ 13. AFFIRMED.

WALLER, C.J., AND PIERCE, J., CONCUR. RANDOLPH, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND COLEMAN, JJ. LAMAR, J., NOT PARTICIPATING.

RANDOLPH, Presiding Justice,

specially concurring:

¶ 14. Justice King’s opinion is not only well-stated and most persuasive, it reaches the same conclusion agreed to by a majority of the members of this Court, with all nine justices participating, in a prior case. See Polk v. State of Mississippi, 2013-CA-00701-SCT, 150 So.3d 967, (Miss. Oct. 9, 2014) (reh’g denied Dec. 4, 2014). In Polk, five justices agreed that no authority exists under this Court’s caselaw or our state’s statutes allowing for the expungement of the record of a criminal conviction for which a pardon was granted. In today’s case, the eight justices participating are deadlocked on the same issue.

¶ 15. Thus, I am constrained to specially concur and express my view that the issuance of a judgment of affirmance is the appropriate disposition of the case sub ju-dice. Today, four justices agree to affirm the trial court’s judgment, and four justices disagree. Thus, the judgment of the trial court should be affirmed. See Rockett Steel Works v. McIntyre, 15 So.2d 624 (Miss.1943) (“trial court must be, and is, affirmed”).

¶ 16. This disposition was first articulated by Chief Justice Marshall for the United States Supreme Court. Chief Justice Marshall wrote:

No attempt will be made to analyze [the parties’ arguments and cited cases], or to decide on their application to the case before us, because the Judges are divided respecting it. Consequently, the principles of law which have'been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.

Etting v. Bank of United States, 24 U.S. 59, 78, 11 Wheat. 59, 6 L.Ed. 419 (1826). In Durant v. Essex Co., 74 U.S. 107, 7 Wall. 107, 19 L.Ed. 154 (1868), addressing the effect of affirmance by a divided court, Justice Field wrote that:

There is nothing in the fact that the judges of this court were divided in opinion upon the question whether the decree should be reversed or not, and, therefore, ordered an affirmance of the decree of the court below. The judgment of affirmance was the judgment of the entire court. The division of opinion between the judges was the reason for the entry of that judgment; but the reason is no part of the judgment itself.

Durant, 74 U.S. at 110. If division of opinion is the reason for the judgment, what purpose do the conflicting opinions serve? The principles of law argued cannot be settled by eight evenly divided justices, and the conflicting opinions provide no authority for the determination of other cases.

¶ 17. The U.S. Supreme Court has explained that:

it is obvious that that which has been done must stand unless reversed by the affirmative action of a majority. It has therefore been the invariable practice to affirm, without opinion, any judgment or decree which is not decided to be erroneous by a majority of the court sitting in the cause.... [A]n affir-mance by an equally divided court is ... a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.

Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S.Ct. 621, 622-28, 54 L.Ed. 1001 (1910) (emphasis added).

¶ 18. Thus, as the judgment of the Circuit Court of Tallahatchie County has not been decided to be erroneous by a majority of the justices sitting in this case, we should affirm without opinion. .

KITCHENS, Justice,

dissenting:

¶ 19. The breadth of Mississippi common law regarding the effect of a gubernatorial pardon persuades me that Hentz is entitled to an expungement of her criminal record. Because my learned colleagues in the plurality have reached a contrary conclusion, I respectfully dissent.

¶ 20. Hentz received the following pardon on January 10, 2012:

NOW, THEREFORE, I, Haley Barbour, Governor of the State of Mississippi, under and by virtue of the authority vested in me by the Constitution and Laws of this State, do hereby grant to Rebecca Hentz née a/k/a Rebecca What-ley a/k/a Rebecca Hentz a full, complete and unconditional pardon for the crime and conviction named herein; and henceforth, shall be absolved from all legal consequences of this crime and conviction.

(Emphasis added.) This Court’s longstanding jurisprudence regarding the scope of executive pardons tracks that of the United States Supreme Court:

The doctrine of the authorities is, that “a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender,” and that “it releases the punishment and blots out of existence the guilt, so that, in the eye of the law the offender is as innocent as if he had never committed the offense.” “If granted after conviction, it removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” Ex parte Garland, [71 U.S. 333, 18 L.Ed. 366,] 4 Wall. 333, 380 [ (1866) ]; United States v. Padelford, [76 U.S. 531, 19 L.Ed. 788,] 9 Wall. 531 [(1869)]; United States v. Klein, [80 U.S. 128, 20 L.Ed. 519,] 13 Wall. 128 [ (1871) ]; Carlisle v. United States, [83 U.S. 147, 21 L.Ed. 426,] 16 Wall. 147 [ (1872) ]; Knote v. United States, 95 U.S. 149 [, 5 Otto 149, 24 L.Ed. 442 (1877) ]. In the case last cited, it is said that “a pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction.” “In contemplation of law, it so far blots out the offence.... ”

Jones v. Bd. of Registrars of Alcorn County, 56 Miss. 766, 768, 31 Am. Rep. 385 (1879) (emphasis added). Likewise, in Ex Parte Crisler, this Court maintained the rule from Jones that:

A pardon by the governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime a ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the act of proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the State the right to impute to him the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted. The pardon obliterates the fact of conviction, and makes it as if it never was.

Ex Parte Crisler, 159 Miss. 247, 250, 132 So. 103 (1931) (quoting Jones, 56 Miss, at 768) (emphasis added).

¶ 21. The plurality attempts to distinguish Crisler: “the opinion expressly limits itself to cases of attorney disbarment.” Crisler, decided in 1931, did involve an attorney, disbarred from the practice of law following a conviction of embezzlement, who sought reversal of the order of disbarment. Crisler, 159 Miss, at 249, 132 So. 103. Likewise is true, as the plurality notes, that this Court held that “a full pardon absolves an attorney at law from all the consequences of an order of disbarment ... as part of the punishment for the commission of a crime.” Id. at 251, 132 So. 103. But Crisler relied on a broader rule articulated by this Court in the 1878 Jones case, which involved restoration of suffrage to a convicted person following a presidential pardon. Jones, 56 Miss, at 771. The Jones Court cited precedents in which the United' States Supreme Court contemplated the extent of the presidential pardons offered by Presidents Lincoln and Johnson to persons involved in rebellion against the United States during the 1860s. In U.S. v. Padelford, for instance, Chief Justice Salmon P. Chase opined that, “[i]n the case of Garland, this court held the effect of a pardon to be such ‘that in the eye of the law the offender is as innocent as if he had never committed the offence’...” U.S. v. Padelford, 76 U.S. 531, 543, 19 L.Ed. 788, 9 Wall. 531 (1869) (quoting Garland, 4 Wall, at 380) (emphasis added).

¶ 22. In spite of - its broad, sweeping language, the plurality recites that “[t]he language in Garland, however, has since been held to be dicta; and more recent caselaw holds that a pardon does not ‘blot out’ the existence of guilt....” (citing Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir.2005)). With respect, an opinion from the United States Court of Appeals for the Seventh Circuit is of no moment to this Court’s analysis of the effect given an executive pardon under controlling Mississippi case law. Beyond that, one of the cases upon which the Seventh Circuit relied to support its position that the Garland language more recently has been rendered dicta is Burdick v. United States, 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915). There, President Woodrow Wilson offered Burdick a pardon in exchange for his testimony. Burdick, 236 U.S. at 85, 35 S.Ct. 267. Burdick refused the pardon, then was held in contempt and incarcerated. Id. at 87, 35 S.Ct. 267. The question before the United States Supreme Court, which ultimately ordered Burdick discharged from custody, involved the distinction between legislative immunity and a presidential pardon:

The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Burdick, 236 U.S. at 95, 35 S.Ct. 267. But Burdick involved a preconviction pardon which Burdick refused; the case is silent regarding whether a pardon entitles the pardonee to an expungement.

¶ 23. The plurality’s citation of ex-pungement eases from the Mississippi Court of Appeals, likewise, is not helpful regarding the effect of a gubernatorial pardon on a convict’s request for expungement. Neither Eubanks v. State, 53 So.3d 846 (Miss.Ct.App.2011), nor Turner v. State, 876 So.2d 1056, 1059 (Miss.Ct.App.2004), addresses the question that is before this Court today: whether a gubernatorial pardon entitles a pardonee to an expungement. The opinion from the Mississippi Attorney General referenced by the majority answers the question in the negative. But in the context of an adversarial system in which the Attorney General is an interested party in this very case, his opinion, while interesting, is far from dispositive.

¶ 24. The plurality further opines that, “[ejxpungement is statutory in nature, and the Mississippi Legislature has ‘authorized expungement of criminal offender records in limited cases.... ’ Caldwell v. State, 564 So.2d 1371, 1372 (Miss.1990).” But Mississippi Code Section 99-15-57(2) (Rev. 2007) provides that, “[ujpon petition therefor, the court shall expunge the record of any ease in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” Section 99-15-57(2), coupled with the breadth of the common law language articulated in Crisler that a gubernatorial pardon “makes [the fact of conviction] as if it never was,” mandates expungement. Crisler, 159 Miss, at 250, 132 So. 103.

¶ 25. Article 5, Section 124, of the Constitution of the State of Mississippi empowers the governor “to grant reprieves and pardons.” Today, the plurality diminishes the effect of gubernatorial pardons in Mississippi. That which previously was regarded as “an act of sovereign grace” now is relegated to a mere piece of paper emblazoned with the dubious phrase “absolved from all legal consequences of this crime and conviction.” I, therefore, dissent.

DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., JOIN THIS OPINION.

      . Polk v. State, 150 So.3d 967, (Miss. Oct.9, 2014), a case in which the mandate has not issued, addresses the same issue as is presented in today's case.

      . Hentz’s conviction-attempt to manufacture methamphetamine under Mississippi Code Section 97-1-7-is not one of the specific felonies listed in Section 99-19-71. See Miss. Code Ann. § 97-1-7 (Rev. 2014).

      . See fn. 1 supra.

      . The dissent argues that Mississippi Code Section 99-15-57(2) provides statutory authority for expungement in this case, because it provides for expungement when "an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” We point out that none of those situations apply. The case was not dismissed, die charges were not dropped, and the case was disposed of via Hentz’s conviction. Indeed, each of these situations are applicable only to cases in which no conviction exists, and thus are clearly inapplicable here.

        .See U.S. Const. Art. II § 2, cl. 1; Fletcher v. Graham, 192 S.W.3d 350 (Ky.2006).