Reader Steven Sholk of the Gibbons law firm alerted me to the February 6 decision by the Mississippi Supreme Court in Barbour v. Mississippi ex rel. Hood. Click here for a copy of the opinion. Steven had been alerted to this case by Rick Hasen of the Election Law blog.
This case involves a squabble between the governor of Mississippi and the state’s attorney general regarding the timing of the election to replace U.S. senator Trent Lott.
Here’s the text of the relevant Mississippi statute, Mississippi Code Annotated Section 23-15-855(1) (The most relevant bits are in bold italics):
If a vacancy shall occur in the office of United States Senator from Mississippi by death, resignation or otherwise, the Governor shall, within ten (10) days after receiving official notice of such vacancy, issue his proclamation for an election to be held in the state to elect a Senator to fill such unexpired term as may remain, provided the unexpired term is more than twelve (12) months and the election shall be held within ninety (90) days from the time the proclamation is issued and the returns of such election shall be certified to the Governor in the manner set out above for regular elections, unless the vacancy shall occur in a year that there shall be held a general state or congressional election, in which event the Governor’s proclamation shall designate the general election day as the time for electing a Senator, and the vacancy shall be filled by appointment as hereinafter provided.
The pertinent facts are as follows:
- On November 26, 2007, Senator Lott announced his intention to retire.
- On December 17, 2007, the attorney general issued an option to the effect that because Lott would be resigning after the 2007 general election but before January 1, 2008, then no later than 10 days after Lott’s resignation the governer would be required to issue a proclamation stating that the election to fill Lott’s seat would be held on a stated date within the following 90 days.
- On December 20, 2007, Lott resigned.
- That same day, the governor set November 4, 2008—the date of the 2008 general election—as the date for the special election to fill the senatorial vacancy, on the grounds that Lott’s resignation had occurred less than a year from the date of the next general election.
- On December 31, 2007, the governor appointed then-Congressman Roger Wicker to serve as a temporary appointee to Lott’s Senate seat.
- On January 2, 2008, the attorney general filed a complaint.
The court held that the governor was not required to observe the 90-day limit. The main issue was whether in this context “year” meant 12 months from any January 1 or instead meant any consecutive period of 365 days.
The court opted for the latter meaning, in effect holding that “unless the vacancy shall occur in a year that there shall be held a general state or congressional election” means “unless the vacancy occurs less than one year from the date of the next general state or congressional election.”
In terms of the semantics, I agree with the Justice Graves, who in a dissent described the court’s reasoning as “gobbledygook.” If I ask “Will an election be held this year?,” I think most listeners would assume that I’m asking whether an election will be held in 2008, not whether an election will be held sometime in the next 365 days. Consequently, I think it would be a stretch to say that “year” is ambiguous in this context. What do you think?
On the other hand, it may be that the court’s approach ultimately makes more sense. (See Mike’s comment.) I wouldn’t dream of offering an opinion on this issue.
2 thoughts on “Fun and Games with the Meaning of “Year””
The logic might be gobbledygook, but so is the language of the statute that very obviously didn’t contemplate someone announcing retirement between election day and January.
Without reading the opinion, though, I’m inclined to think that the court got the intention correct: (i) if someone resigns and there’s already an election scheduled within a year, then presto, no need to call for a new election; or (ii) if there’s not a proximate election day, we’re going to pick an arbitrary time in the next 3 months to have one.
The alternative result is that the state foot the bill for two elections in the same year which is likely both expensive and usually accompanied by really poor turn out in the special election.
I’m with you and Justice Graves.
Without knowing anything about Mississippi legislation I’d have thought that the “different words have different meanings” presumption would lead to the conclusion that if the drafters of this legislatin had meant “year” to mean “twelve (12) months” they would have used the same phrase in both parts of this section.
But then the Mississippi Code § 1-3-63 says:
The term “year,” when used in any statute, means a calendar year, unless a contrary intention be expressed.
The Court got around this by saying that there was a contrary intention expressed in s. 23-15, specifically in Section 23-15-855(2) where “the term ‘year’ within the phrase ‘one (1) year,’ plainly does not refer to one ‘calendar year.'”
I cannot see how they did not take this to mean that the 23-15-855(1) would have had to say “one (1) year” to if it was not supposed to be a calendar year.