April 24, 2025
TO
THE MISSISSIPPI HOUSE OF REPRESENTATIVES:
GOVERNOR’S VETO MESSAGE FOR HOUSE BILL 924
I am returning House Bill 924: “AN ACT
TO CREATE THE CREATING LOGIC FOR EFFICIENCY AND ACCOUNTABILITY REFORM (CLEAR)
ACT; TO CREATE NEW SECTION 5-3-77, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE
PEER COMMITTEE TO ESTABLISH A PROGRAM OF REVIEWING SELECTED NEWLY ADOPTED STATE
AGENCY ADMINISTRATIVE RULES; TO PROVIDE THAT SUCH REVIEWS SHALL PRODUCE A
REPORT TO THE LEGISLATURE ON NEWLY ADOPTED STATE AGENCY ADMINISTRATIVE RULES
AND THEIR CONFORMITY TO THE INTENT OF THE LAW AUTHORIZING THEM, AS WELL AS ANY
OTHER MATTER THE COMMITTEE CONSIDERS APPROPRIATE; TO AMEND SECTION 47-5-579,
MISSISSIPPI CODE OF 1972, TO CLARIFY THAT ALL PROGRAM WITHHOLDINGS FROM
PARTICIPANTS OF THE PRISON INDUSTRIES CORPORATION'S WORK INITIATIVE PROGRAM
SHALL BE CALCULATED BASED UPON PARTICIPANT WAGES AFTER MANDATORY DEDUCTIONS; TO
REQUIRE ACCOUNTING OF ANY DEPENDENT SUPPORT PAYMENTS, FINES, RESTITUTIONS, FEES
OR COSTS, AS ORDERED BY THE COURT, BE REPORTED FOR EACH WORK INITIATIVE
PARTICIPANT; TO REQUIRE THAT THE REMAINING SENTENCE LENGTH OF SUCH PARTICIPANT
BE COLLECTED, MAINTAINED AND REPORTED; AND TO REQUIRE THAT A FINANCIAL ACCOUNT
CREATION DATE BE COLLECTED, MAINTAINED AND REPORTED FOR EACH PARTICIPANT; TO
AMEND SECTION 1, CHAPTER 431, LAWS OF 2024, TO EXTEND THE OPERATION OF THE
MISSISSIPPI K-12 AND POSTSECONDARY MENTAL HEALTH TASK FORCE FOR ONE ADDITIONAL
YEAR; TO PROVIDE THAT THE TASK FORCE SHALL DEVELOP AND REPORT ITS FINDINGS AND
RECOMMENDATIONS TO THE MISSISSIPPI LEGISLATURE ON OR BEFORE OCTOBER 1, 2025; TO
DISSOLVE THE TASK FORCE UPON PRESENTATION OF THE REPORT DUE ON OR BEFORE
OCTOBER 1, 2025; TO ENACT THE "MISSISSIPPI K-12 AND POSTSECONDARY MENTAL
HEALTH ACT OF 2025"; TO ESTABLISH AN EXECUTIVE COMMITTEE OF THE
INTERAGENCY COORDINATING COUNCIL FOR CHILDREN AND YOUTH (ICCCY); TO PROVIDE FOR
THE COMPOSITION OF THE EXECUTIVE COMMITTEE; TO SPECIFY THE EXECUTIVE
COMMITTEE'S COORDINATING RESPONSIBILITIES RELATED TO THE GENERAL MENTAL HEALTH
AND WELL-BEING OF CHILDREN AND ADOLESCENTS; TO PROVIDE FOR THE DISSEMINATION OF
RECOMMENDATIONS AND INFORMATION COMPILED BY THE EXECUTIVE COMMITTEE; TO AMEND
SECTION 43-13-1, MISSISSIPPI CODE OF 1972, TO CONFORM; TO BRING FORWARD SECTIONS
43-14-3 AND 43-14-5, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE
AMENDMENT; TO CREATE SECTION 5-3-70, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR
CIVIL ENFORCEMENT OF PEER COMMITTEE SUBPOENAS; TO AMEND SECTION 5-3-59,
MISSISSIPPI CODE OF 1972, TO PROVIDE CRIMINAL PENALTIES FOR PERSONS WHO FAIL TO
COMPLY WITH SUBPOENAS FROM THE PEER COMMITTEE; TO AMEND SECTIONS 5-1-23 AND
5-1-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THESE PROVISIONS ARE NOT
APPLICABLE TO SUBPOENAS ISSUED BY THE PEER COMMITTEE; TO AMEND SECTION 5-1-35,
MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE SERGEANT-AT-ARMS OF THE
MISSISSIPPI STATE SENATE SHALL DELIVER TO DPS THE REQUEST TO SERVE SUBPOENAS
ISSUED BY THE PEER COMMITTEE; TO AMEND SECTION 29-13-1, MISSISSIPPI CODE OF
1972, TO ALLOW FOR THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO ESTABLISH A
SELF-INSURANCE FUND OR SELF-INSURANCE RESERVES, OR ANY COMBINATION THEREOF, TO
INSURE STATE-OWNED BUILDINGS AND CONTENTS; TO REQUIRE THE MISSISSIPPI
SELF-INSURANCE TASK FORCE TO REPORT ON THE COST BENEFITS OF SELF-INSURING
BEFORE FUNDS ARE EXPENDED TO SELF-INSURE; TO CREATE THE MISSISSIPPI
SELF-INSURANCE TASK FORCE TO STUDY, REPORT AND MAKE RECOMMENDATIONS REGARDING A
SELF-INSURANCE PLAN; TO PROVIDE CERTAIN ITEMS FOR THE TASK FORCE TO STUDY,
REPORT AND MAKE RECOMMENDATIONS ON; TO PROVIDE FOR THE MEMBERSHIP AND MEETING
PROCEDURE OF THE TASK FORCE; TO REQUIRE THE TASK FORCE TO MAKE A REPORT OF ITS
FINDINGS AND RECOMMENDATIONS, INCLUDING ANY RECOMMENDED LEGISLATION, TO THE
LIEUTENANT GOVERNOR, SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE CHAIRS OF
THE INSURANCE COMMITTEES OF THE HOUSE OF REPRESENTATIVES AND SENATE ON OR
BEFORE NOVEMBER 1, 2025, AT WHICH TIME THE TASK FORCE WILL BE DISSOLVED; TO
AMEND SECTION 31-11-3, MISSISSIPPI CODE OF 1972, TO CONFORM; TO BRING FORWARD
SECTIONS 37-29-67, 41-73-31, 37-7-303 AND 37-101-15, MISSISSIPPI CODE OF 1972,
FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.”
House
Bill 924 proposes a series of amendments to a number of unrelated state laws,
including: (1) greatly expanding the powers of the Joint Legislative Committee
on Performance Evaluation and Expenditure Review (“PEER”) by giving it
unbounded oversight authority over regulations adopted by executive agencies
and unilateral year-round subpoena power and enforcement authority; (2) revising
the formula for compensation received by inmates in a work release program and
modifying the auditing requirements; (3) extending the required reporting
period for the K-12 and Postsecondary School Mental Health Task Force; (4)
creating a new executive committee of the Interagency Coordinating Council for
Children and Youth and adding members to the Council; and (5) authorizing DFA
to establish a self-insurance fund or reserve for state property contingent on
the findings of a newly created task force.
Section
2 of House Bill 924 authorizes PEER to “establish a program for reviewing
selected newly adopted state agency administrative rules. . . [to determine]
their conformity to the intent of the law authorizing them. . .
.” (emphasis added). Such a standard is utterly meaningless and
plainly violates Due Process. In the
words of the late Justice Scalia, the people are “governed by laws, not by the
intentions of the legislators,” and if one was to determine the “greatest
defect” of legislative intent, it would surely be “its illegitimacy.” As Justice Scalia famously said, looking at
legislative history and intent is the equivalent of “walking into a crowded
cocktail party and looking over the heads of the guests to pick out your
friends.” Relying on legislative history
and intent as a method of statutory interpretation allows the reviewer to
select from a wide range of potentially conflicting materials and statements to
support the reviewer’s policy preferences.
The plain text of the authorizing statute, not the nebulous and
mysterious intent of the legislature is the constitutional North Star for
executive agency action. Empowering PEER
to determine whether executive action comports with legislative intent is standardless
and the “equivalent of Romeo sending Mercutio on a wild goose chase—and then
admitting there never was a goose while denying he even suggested a
chase.” The existing required
administrative procedures for adopting agency regulations, including mandatory
public notice and comment, and the judicial branch are the appropriate arbiters
of the legality of agency regulations. While
the Legislature is free, through the normal legislative process, to amend the
text of any authorizing statute to curtail executive agency action, it may not
do so through the long arm of PEER.
In
addition to the likely unconstitutional delegation of authority to PEER in
Section 2 of House Bill 924, Sections 10 through 12 seek to give PEER
unilateral year-round subpoena enforcement authority. Under existing law, if a person refuses to
comply with a legislative subpoena, the chamber, by resolution entered on its
journal, may commit the person for contempt, and such commitment may not extend
beyond the final adjournment of the session.
Such person may be arrested by the sergeant-at-arms and brought before
the chamber for compliance with the subpoena.
See Miss. Code § 5-1-23.
Thus, under existing law, legislative subpoena and contempt power is constrained
to the 90 (or 120) days that the Legislature is in session and requires any
contempt citation be issued by resolution of the entire chamber. PEER, like all legislative committees, is
authorized to utilize this existing subpoena enforcement mechanism. See Miss. Code § 5-3-59(a).
Section
10 of House Bill 924 seeks to give PEER unique and super subpoena enforcement
authority empowering the chairman, in the name of PEER, to file a complaint
before any chancery court to enforce a PEER subpoena. Section 10 goes on to mandate that the court
“shall take jurisdiction of the witness and subject matter” and “shall direct
the witness to respond to any lawful question and to produce all documentary
evidence in possession of the witness that is lawfully demanded.” Finally, Section 10 empowers PEER to utilize
the Attorney General of the State of Mississippi to pursue such subpoena
enforcement. In addition, Section 11
imposes a criminal penalty of $1,000 and imprisonment in the county jail for
not more than six months for any person who willfully refuses to comply with a
PEER subpoena. Such criminal contempt
shall be prosecuted by the Attorney General or the appropriate county
prosecuting attorney.
Setting
aside any potential separation of powers issues created by mandating that the
judicial branch enforce a legislative subpoena, the current law limiting
legislative subpoena power to the period of time that the Legislature is in
session, requiring a resolution of the chamber to enforce the subpoena and limiting
enforcement power to proceedings conducted by the legislative branch are necessary
and prudent checks on legislative authority.
House Bill 924 seeks to greatly expand the subpoena power and enforcement
authority of one single legislative committee, appointed by the Speaker and
Lieutenant Governor, authorizing the committee to take enforcement action
without either the knowledge or approval of a majority of the members of either
legislative chamber. Again, under
existing law, a majority of the members of the chamber must vote to enforce a
legislative subpoena and hold a person in contempt for failing to comply. As the Mississippi Supreme Court recently
affirmed, the Mississippi Legislature may act only through a majority of its
members, and individual members or a small group thereof do not have standing
to act on behalf of the body. This
indisputable principle is almost certainly why current law requires a
resolution by the chamber to authorize holding a person in contempt for failing
to comply with a legislative subpoena. In short, the proposed expanded subpoena power
for PEER in House Bill 924 unwisely delegates enforcement authority to a small
group of legislators raising serious concerns.
Finally,
Section 15 of House Bill 924 directs the Department of Finance and
Administration (“DFA”) to establish “a self-insurance fund or self-insurance
reserves, or any combination thereof” for all state-owned buildings, and provides
“[n]o funds shall be expended for the establishment of any such self-insurance
program until such time as the Mississippi Self-Insurance Task Force has
completed a report and the report reflects a cost benefit to the State of
Mississippi.” Section 16 sets up the
Task Force, and Section 17 amends DFA’s enabling statute to “allow for the
establishment of a self-insurance fund or self-insurance reserve, or any
combination thereof.” While in recent
years the Legislature has established dozens of task forces to study a wide
variety of issues, the Legislature has not amended existing statutes in
anticipation of the findings of such task forces. House Bill 924 seeks to amend DFA’s enabling
statutes to authorize it to establish a self-insurance fund before the task force
determines if such a self-insurance program for state buildings would be
financially sound, a clear example of placing the cart before the horse. Further, as Hurricane Katrina taught us,
Mississippi is susceptible to natural disasters that could result in
catastrophic correlated property losses throughout the entire state. Given the potential for such devastating correlated
losses, it is highly doubtful that the creation of a self-insurance risk pool
for state property would be financially sound.
Until such a predicate determination is made, however, it is imprudent
to amend existing statutes to empower DFA to establish a self-insurance fund or
reserves for state property.
In sum,
while no doubt well-intentioned, many of the amendments to existing state law
proposed by House Bill 924 require further study and careful reconsideration. Thus, I am vetoing House Bill 924 at this
time.
Respectfully
submitted,
TATE
REEVES
GOVERNOR