IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-01070-SCT

STATE OF MISSISSIPPI

v.

JESSIE PAUL WATKINS

DATE OF JUDGMENT: 9/11/92

TRIAL JUDGE: HON. NATHAN P. ADAMS, JR.

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL

BY: LEONARD MCCLELLAN

ATTORNEY FOR APPELLEE: NO BRIEF FILED

NATURE OF THE CASE: CIVIL - UNCONSTITUTIONAL STATUTE

DISPOSITION: REVERSED AND RENDERED - 5/30/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/20/96

BEFORE PRATHER, P.J., PITTMAN AND SMITH, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

¶1. On June 26, 1992, a Special Master of the Sunflower County Chancery Court signed an order of

commitment for Jessie Paul Watkins to be committed to the Mississippi State Hospital for examination and

treatment "at such time as the director determines that adequate facilities and services are available." On

July 29, 1992, the Special Master submitted a report to the chancellor requesting the chancellor to enter an

order for the director of the Mississippi State Hospital to show cause why he should not be held in

contempt for failure to admit Watkins to the State Hospital after thirty-three (33) days from the date of the

commitment order.

¶2. On July 31, 1992, the chancellor accepted the report of the Special Master and entered an order

directing the chancery clerk to issue a citation to Joe F. Blakeney, Director of the Mississippi State Hospital

at Whitfield, to appear before the court at 9:00 a.m. on August 7, 1992, in Indianola, Mississippi, to show

cause why he should not be held in contempt for failure to comply with the commitment order. The order

also directed that a summons be issued for the Attorney General of the State of Mississippi to appear at the

show cause hearing.

¶3. On August 7, 1992, at the conclusion of the show cause hearing, the chancellor made a bench ruling in

which he declared unconstitutional that portion of Miss. Code Ann. § 41-21-77 (1992), which provides
that no person shall be admitted to the State Hospital until the Director determines that facilities and services

are available. The chancellor ordered that Mr. Watkins be immediately transported to the State Hospital by

the Sheriff.

¶4. The August 7, 1992, bench opinion was reduced to writing, signed and entered on September 11,

1992. From this final judgment declaring a portion of section 41-21-77 unconstitutional, the State of

Mississippi perfected its appeal. Aggrieved by the decision of the court below the State of Mississippi

asserts the following error on appeal:

THE CHANCERY COURT ABUSED ITS DISCRETION BY SUA SPONTE

DECLARING A STATE STATUTE UNCONSTITUTIONAL WITHOUT GIVING

NOTICE TO THE ATTORNEY GENERAL TO APPEAR AND DEFEND THE

CONSTITUTIONALITY OF THE STATUTE.

The chancellor erroneously declared a portion of a state statute unconstitutional and without proper notice

to the Attorney General of the State. Therefore, the decision of the lower court should be reversed and

rendered.

FACTS

¶5. On June 26, 1992, Sara Black, the sister of Jessie Paul Watkins, filed an affidavit and application for

commitment of Watkins in the Chancery Court of Sunflower County, Mississippi. The Special Master

promptly appointed the Hull Medical Clinic of Indianola, Mississippi, to conduct a mental and physical

examination of Watkins. Doctors Wade Dowell and W. L. Prichard examined Watkins on June 26, 1992,

and certified that Watkins was in need of treatment by mental health professionals. An attorney was

appointed by the Special Master to represent the interest of Watkins.

¶6. Following a commitment hearing (also held on June 26, 1992), the Special Master entered an order of

commitment that provided that: (1) Watkins be "committed to the Mississippi State Hospital for

examination and/or treatment to be admitted at such time as the director determines that adequate facilities

and services are available," (2)Watkins be placed in the custody of the Sunflower County Sheriff until such

time as space becomes available in the State Hospital, and (3) Watkins be confined as an emergency

patient at either the North Sunflower County Hospital or the South Sunflower County Hospital until space

became available at the State Hospital.

¶7. Thirty-three (33) days later(1), on July 29, 1992, the Special Master submitted a report to the

chancellor wherein he recited the procedural history of the case and stated that the State Hospital's

attorneys "were reviewing the matter to see whether or not they were going to admit Mr. Watkins." The

Special Master's report concluded by requesting that the chancellor enter an order for the Director of the

Mississippi State Hospital, Mr. Joe F. Blakeney, "to show cause why he has not admitted Mr. Watkins;

why he should not be held in contempt of this Court and to have the matter set for hearing before the

chancellor at the earliest possible date."

¶8. On July 31, 1992, the chancellor accepted the Special Master's recommendation and scheduled a

show cause hearing for August 7, 1992. Pursuant to the chancellor's July 31, 1992, order, both the

Director of the State Hospital and the Attorney General were issued citations to appear at the contempt

hearing. Neither the summons issued to the Director of the State Hospital nor the Attorney General gave
any indication that the constitutionality of a state statute was being challenged or that the court was

contemplating construing the constitutionality of a state statute in the absence of a challenge.

¶9. At the August 7, 1992 hearing, the court announced that the purpose of the hearing was for the Director

of the State Hospital at Whitfield to show cause why he should not be held in contempt for failure to abide

by the Court's June 26, 1992 Commitment Order. The court then called Dr. William Wade Dowell, a

Family Medicine Physician, as the court's witness. Attorney Carol Thweatt, an attorney for the Department

of Mental Health, was present at the hearing representing the Mississippi State Hospital and its Director,

Mr. Joe F. Blakeney. No one from the Attorney General's Office appeared at the contempt citation hearing.

¶10. At the conclusion of the hearing, the chancellor issued a bench opinion in which he concluded that

section 41-21-77 of the Mississippi Code of 1972, which provided that no person shall be delivered or

admitted to the State Hospital until the director determines that facilities and services are available, is

violative of section 86 of the Mississippi Constitution of 1890, which reads as follows:

It shall be the duty of the legislature to provide by law for the treatment and care of the insane; and the

legislature may provide for the care of the indigent sick in the hospitals in the state.

This conclusion was predicated on the fact that state law does not specifically provide for the care of

patients between the time of the commitment orders and the time of delivery and admission to the State

Hospital. The court further found that Sunflower and other counties did not have the funds and facilities to

properly care for mental patients between the time of commitment and admission and therefore could not

meet the constitutional requirements imposed by the federal and state constitutions. The court ordered that

Mr. Watkins be forthwith delivered to the State Hospital, but did not find the Director, Mr. Blakeney, to be

in contempt of court.

DID THE CHANCERY COURT ABUSE ITS DISCRETION BY SUA SPONTE

DECLARING A STATE STATUTE UNCONSTITUTIONAL WITHOUT GIVING

NOTICE TO THE ATTORNEY GENERAL TO APPEAR AND DEFEND THE

CONSTITUTIONALITY OF THE STATUTE.

¶11. The issue confronting the court below could have and should have been disposed of without the

necessity of ruling on the constitutionality of the statute. "Courts have a solemn duty to avoid passing upon

the constitutionality of any law . . . unless compelled to do so by an issue squarely presented to and

confronting a court in a particular case." Jones v. Harris, 460 So. 2d 120, 122 (Miss. 1984)(quoting

Western Line Consol. Sch. Dist. v. Greenville Mun. Separate Sch. Dist., 433 So. 2d 954, 958

(Miss. 1983)). This is not to say that courts do not have the power to review legislative enactments.

Although such a power exists, it may only be exercised affirmatively where the legislation under review is "in

palpable conflict with some plain provision of the . . . constitution." Hart v. State, 87 Miss. 171, 176, 39

So. 523, 524 (1905). "The rule we follow is that a statute is presumed to be constitutional." Harris, 460

So. 2d at 122 (emphasis in original). The party challenging the constitutionality of a statute must prove his

case beyond all reasonable doubt before a court has authority to void a statute in whole or in part.

Mississippi Power Co. v. Goudy, 459 So. 2d 257, 263 (Miss. 1984).

¶12. Although the lower court had the authority to declare the statute unconstitutional, its actions were

improper because the issue could have been easily resolved without reaching the constitutionality of the

statute. At the August 7 hearing, Mr. Blakeney testified that Watkins never lost his place on the waiting list.
During his testimony, Mr. Blakeney told the procedure followed at the State hospital. All the commitments

are screened to determine the appropriateness of the commitment -- whether it should be a psychiatric

commitment or a drug-alcohol commitment. It was Mr. Blakeney's testimony that often people are

committed to the psychiatric unit when they should be committed to the drug and alcohol unit and vice

versa. This was the case with Watkins. He was placed on the waiting list. Mr. Blakeney requested that the

Sunflower Chancery Court amend its order to commit Watkins to the drug and alcohol unit. This request

was denied. Mr. Watkins never lost his place on the waiting list. Mr. Blakeney further testified that the State

Hospital was prepared to take Watkins at the time of the hearing. In fact, at the conclusion of the hearing

Watkins was taken to the State Hospital. The issue of whether the Department of Mental Health or its

Director was in contempt of court was resolved in favor of the Department. Thus, it was not required for

the chancellor to find a portion of section 41-21-77 unconstitutional and was error for him to do so.

¶13. The State also argues that it was error for the chancellor, sua sponte, to declare a portion of a state

statute unconstitutional without providing any notice or indication that he was considering the

constitutionality of the statute. Section 7-5-1 of the Mississippi Code Annotated requires the State Attorney

General to "intervene and argue the constitutionality of any statute when notified of a challenge thereto,

pursuant to the Mississippi Rules of Civil Procedure." Miss. Code Ann. § 7-5-1 (1991 rev. ed.).

Mississippi Rules of Civil Procedure Rule 24(d) authorizes the Attorney General to intervene in any action

in which the constitutionality of a state statute is called into question. The party asserting the

unconstitutionality of the statute shall notify the Attorney General in sufficient time as to afford him an

opportunity to intervene and argue the question of constitutionality. Miss. R. Civ. P. 24(d).

¶14. The only notice afforded the Attorney General in the case at bar was notice of a show cause hearing.

Even if the chancellor was correct in challenging the statute, he erred by not providing the Attorney General

with proper notice. The controlling statute and rule require that notice of the challenge be given. The

absence of such notice is reversible error.

CONCLUSION

¶15. The chancellor abused his discretion by sua sponte declaring a portion of a state statute

unconstitutional when the issue could have been and was resolved without the necessity of reaching the

constitutional validity of the statute. The matter was resolved without reaching the constitutionality of our

laws. Therefore, the decision of the chancellor declaring portions of section 41-21-77 unconstitutional is

reversed. This Court will not determine the constitutionality of a statute where it has not been properly

challenged. Thus, section 41-21-77 remains cloaked in its presumption of constitutionality. See Jones v.

Harris, 460 So. 2d 120, 122 (Miss. 1984).

¶16. REVERSED AND RENDERED.

PRATHER AND SULLIVAN, P.JJ., ROBERTS, SMITH AND MILLS, JJ., CONCUR.

BANKS, J., CONCURS WITH SEPARATE OPINION JOINED BY LEE, C.J. McRAE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION.

BANKS, JUSTICE, CONCURRING:
¶17. I concur with the result reached by the majority insofar as it vacates that part of the order of the

chancery court which declares Miss. Code Ann. 1972 § 41-21-77 unconstitutional. Rather than reach that

result based upon Miss. R. Civ. P. 24(d), however, I rely upon our established precedent in Estate of

Miller v. Miller, 409 So. 2d 715 (Miss. 1982). In that case, we held that a trial court may not declare a

state statute unconstitutional sua sponte.

¶18. This case is especially problematic in that it was not litigated in the usual adversarial manner. The

respondent, Watkins, was the person being committed. His interests were not necessarily antagonistic to the

department of mental health, the respondent to the sua sponte show cause order. Indeed, he made no

appearance in those proceedings, nor has he made an appearance before this Court. There is no appellee's

brief.

¶19. The Attorney General, on the other hand, was notified of the proceedings. A copy of the show cause

order was served on that office at the direction of the chancery court. The Attorney General chose to allow

the DHS to be represented by counsel regularly assigned to the Department of Mental Health. The

chancery clerk related a telephone conversation with the office of the Attorney General in which it was

verified that assigned counsel represented the office of the Attorney General in the proceedings. In response

to that announcement, it was reported to the court by assigned counsel that an Assistant Attorney General

acknowledged service and was available to consult with assigned counsel by telephone during the

proceedings. The trial court questioned the constitutionality of the statute during those proceedings. The

attorney representing the State had no ready response, as can be expected, considering that the issue had

not been pled or otherwise raised beforehand. Following the bench ruling, however, no effort was made at

the trial court level to assert the constitutional validity of this statute through a motion for new trial or to alter

or amend the judgment. Miss. R. Civ. P. 59.

¶20. It follows, in my view, that Miss. R. Civ. P. 24(d) does not govern this situation. That rule speaks to

notification by parties and is designed to give the Attorney General notice and an opportunity to intervene.

Here the Attorney General had notice of the proceedings and participated. The problem is that the court

acted sua sponte in declaring a statute unconstitutional in contravention of our established precedents. Tax

Commission v. One 1984 Black Mercury, 568 So. 2d 707 (Miss. 1990); Estate of Miller v. Miller,

409 So. 2d 715 (Miss. 1982); State ex rel. Carr v. Cabana Terrace Inc., 247 Miss. 26, 153 So. 2d

257 (1963).

¶21. The real parties in interest here appear to be the taxpayers of Sunflower County and the taxpayers in

the state at large. The dispute involves the expense of maintaining patients who are committed when space

at a mental institution is lacking. As the majority notes, the issue of Mr. Watkins's admission could have

been answered without reference to the constitution. In some other circumstance, the constitutional question

may be unavoidable. We should await that day to pass upon the issue. Then, perhaps, we will have the

benefit of truly adversarial proceedings.

¶22. For the foregoing reasons, I would vacate that part of the order of the chancery court which declares

the statute unconstitutional.

LEE, C.J., JOINS THIS OPINION.

McRAE, JUSTICE, DISSENTING:
¶23. While the better practice is for the trial court to provide the Attorney General with advance notice of

its intention to rule on the constitutionality of a statute, I disagree with the majority's opinion that the

Attorney General did not receive adequate notice in this case.

¶24. M.R.C.P. 24(d) requires a party challenging the constitutionality of a statute to provide notice to the

Attorney General so as to afford him the opportunity to intervene. The Comment to Rule 24(d) provides

that:

Notice to the Attorney General is mandatory even if the Court thinks the Constitutional question

frivolous, but failure to give the notice does not deprive the court of jurisdiction to decide the case.

Service of notice on the Attorney General therefore is not jurisdictional. See Oak Center Creamery Co. v.

Grobe, 264 Minn. 435, 119 N.W. 729, 730 (1963)(where rule analogous to M.R.C.P. 24 (d) previously

held to be jurisdictional, party's failure to notify Attorney General that appeal was direct attack on

constitutionality of statute, dismissal of appeal was warranted). In this case, the Attorney General had notice

of the proceedings and was represented by an attorney from the Mental Health Department. The

chancellor, therefore, made its ruling in the presence of Mental Health's attorney, Carol Thweatt. No

objections were made to the pronouncement at that time nor did the Attorney General's Office file any posttrial motions to modify or strike portions of the order prior to bringing this appeal.

¶25. It further was not, as the majority suggests, an abuse of discretion amounting to reversible error for the

chancellor to enter a commitment order for Watkins, to refuse to hold the Director of the State Hospital in

contempt, and in his bench opinion, to challenge a statutory clause that clearly thwarts the constitutional

mandate that the legislature provide for the care and treatment of the mentally ill as well as the chancery

court's authority to timely enter commitment orders.

¶26. Accordingly, I dissent.

1. Mr. Watkins had been in jail and then a county hospital during this time. Dr. Dowell testified that his

conditioned had worsened considerably during this time. He further testified that this might have been

avoided had he been given the proper treatment.