Who Gets to Challenge Constitutionality?

February 11, 2019 § Leave a comment

In the divorce judgment entered between Michael and Joesie Gerty, the chancellor sua sponte declared MCA § 93-5-2 (divorce on the ground of irreconcilable differences) unconstitutional.

Michael, Joesie, and the State of Mississippi all filed R59 motions asking the court to set aside that part of her ruling because no party had pled, argued, or offered evidence on the issue. The chancellor did not change her ruling, and all three movants appealed.

In Gerty and Mississippi, ex re. Hood v. Gerty, decided December 13, 2018, the MSSC reversed on the issue of constitutionality. Justice Randolph’s opinion for a unanimous court made short work of the issue:

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s constitutionality will not be considered unless it has been specifically pleaded. See Martin [v. Lowery], 912 So. 2d [461] at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss. 2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260 (1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437 So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor’s judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

The opinion does not describe the basis for the chancellor’s ruling of unconstitutionality. In Footnote 5, the opinion states that, “An amicus brief was filed by the Misssissippi Coalition Against Domestic Violence in support of the chancellor’s finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”

The court reversed and remanded on other issues raised by the parties.

At ¶5, this enigmatic statement appears: “Today’s case … is unique but not unprecedented … ” It seems to me that something unique is by its nature unprecedented.

This case, involving a sua sponte unconstitutionality ruling, is not a scenario you are likely to encounter, but, as the precedent shows, it is in the realm of possibility.

CONSTITUTIONAL: MARTIN FACTORS AND GRANDPARENT VISITATION

May 21, 2012 § 3 Comments

Ever since grandparent visitation was enacted by our legislature in 1983, I have heard grumblings from some members of the bar that the statute is unconstitutional. The complaint chiefly is that it intrudes the state into the parent-child relationship and invades the province of parents’ decison-making, which should be beyond the state’s reach when the parents have not violated any laws or hurt their children.

The first test came in the case of Martin v. Coop, 693 So.2d 912 (Miss. 1997), in which the MSSC upheld the constitutionality of the statutes and established factors that trial courts were required to consider in adjudicating whether there should be grandparent visitation in a given case, and its terms.

The matter appeared to be settled until the US Supreme Court’s decision in Troxel v. Granville, 530 US 57 (2000), which held a visitation statute of the State of Washington to be unconstitutional. In Troxel the opponents saw another avenue of attack, and it was only a matter of time before the issue would percolate up from a trial court.

The first case in the aftermath of Troxel was Zeman v. Stanford, 789 So.2d 798 (Miss. 2001), in which the appellants questioned the constitutionality of MCA 93-16-3(1), which affords grandparental visitation when the parents are divorced and one parent has been awarded custody. The court in Zeman held that the constitutionality of that very statute had already been addressed and found constitutional in Martin v. Coop, and that Troxel added nothing new to the conversation.

The most recent iteration on the subject came in the case of Smith v. Wilson, an appeal from Chancellor Jim Davidson’s ruling in Lowndes County Chancery Court. In this case, the grandparents had sought visitation on the basis that their daughter, the child’s mother, had died. The judge granted the visitation in favor of the Wilsons, and the Smiths appealed, questioning the constitutionality of both MCA 93-16-3 and 93-16-5 in light of Troxel.

In its May 3, 2010, opinion authored by Justice King, the court first distinguished the statute deemed unconstitutional in Troxel. That Washington law provided:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

The statute was too broad in scope, since it did not define any specific class of persons who would have standing to petition for visitation, and it did not protect the parent’s right to make decisions about rearing her children. As for other non-parental visitation statutes, the Supreme Court declined to go further, stating:

Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.

Justice King pointed out that the Mississippi statute is not overly broad as was the statute in Troxel, and that both Martin and Zeman correctly dispose of the constitutionality argument through the application of the Martin factors, which protect the parents’ substantive due process rights. The court held that neither of the statutes nor the Martin factors violate the Constitution.

A couple of other points from the decision:

  • The Smiths’ argument that the burden of proof should be by clear and convincing evidence, was rejected by the court, which found no authority for the proposition (¶¶ 26-27).
  • The court found (¶30) no merit to the argument that chancellors should be required to defer to parents’ wishes. The court stated that “While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference.
  • Also rejected was the Smith’s argument that a parent must be found unfit before awarding grandparent visitation (¶¶31-32).
  • The court held (¶¶33-35) that there is no requirement in the statute providing for visitation by the parents of a dead parent that there have been an unreasonable denial of visitation as a prerequisite.

The decision, joined in by all nine justices, affirmed Judge Davidson’s award of grandparent visitation.

So it would appear that the constitutionality of Mississippi’s grandparent visitation is laid to rest, at least for now. I do not know whether a petition for rehearing has been filed, but that would likely be a futile gesture considering the unanimity of the court. Maybe the appellants are maneuvering for a run at the US Supreme Court. We’ll see.

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