2002 Regular Session
To: Judiciary A
By: Representative Howell
AN ACT TO CREATE THE SEPARATION OF POWERS ACT; TO CLARIFY THAT THE LEGISLATURE SHOULD PROVIDE THE COURTS WITH LAWS OF REFERENCE; TO PROVIDE FOR A STUDY COMMISSION; TO PROHIBIT THE CREATION OF RULES OF LAW ON A RETROACTIVE BASIS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Separation of Powers Act."
SECTION 2. (1) The Constitution of the State of Mississippi vests the Legislature with the sole authority to create laws in light of the public interest. The Constitution enabled courts to adjudicate cases by applying the laws enacted by the Legislature to the facts of those cases.
(2) After the Constitution of the State of Mississippi was adopted, the Legislature enacted laws to provide the courts with the authority to refer to the common law in adjudicating cases. The common law consisted of case holdings rendered by English courts prior to the Revolution of 1776 or by the territorial courts before the Legislature was empowered to create the laws of the state or common law principles existing at the time a territory became a state. The purpose was to permit the courts to continue to apply the common law that was in existence at the time of statehood and develop it in the interest of the public policy of the state unless it was abrogated or altered by the Legislature.
SECTION 3. An action or proceeding commenced before this act takes effect is not affected by this act but all actions or proceedings commenced after that date shall conform to this act.
SECTION 4. The Legislature shall appoint a commission to study which post-statehood common law causes of action are abrogated by this act and to make recommendations to the Legislature regarding those causes of action which the commission believes should be reincorporated in the law by way of statute.
The commission shall be comprised of the following members:
(a) Five (5) members appointed by the Speaker of the House, one (1) from each congressional district and one (1) from the state at large; and
(b) Five (5) members appointed by the Lieutenant Governor, one (1) from each congressional district and one (1) from the state at large.
Historically, legislatures have had the right and duty to create and enact laws without any improper interference from the courts. The United States Constitution and state constitutions vest authority in the legislatures to make public policy because the legislative process involves public hearings at which all views are presented and debated. In contrast, courts only review the narrow arguments of the private parties before the court, which are necessarily restricted to the interests of those parties. Legislatures, not courts, are the appropriate forum for developing laws which involve broad policy issues, such as the creation of new legal causes of action.
SECTION 5. The judicial branch of this state shall not create rules of law on a retroactive basis, including rules of law that would apply to conduct that occurred prior to the time of the filing of a claim arising out of that conduct.
SECTION 6. This act shall take effect and be in force from and after July 1, 2002.