Miss. R. App. P. 44

As amended through October 22, 2024

Rule 44 - Questions Concerning Validity of Statutes and Orders

(a) Service. If the validity of any statute, executive order or regulation, municipal ordinance, franchise or written directive of any governmental officer, agent, or body is raised in the Supreme Court or the Court of Appeals, and the state, municipal corporation, or governmental body which enacted or promulgated it is not a party to the proceeding, the party raising such question shall serve a copy of its brief, which shall clearly set out the question raised, on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved.

(b) Right to Respond. The state, municipal corporation, or governmental body shall, within the time allowed for the filing of a response to the brief, be entitled to file a response and may subsequently be heard orally in the discretion of the court.

(c) Necessity. Except by special order of the court to which the case is assigned, in the absence of such notice neither the Supreme Court nor the Court of Appeals will decide the question until the notice and right to respond contemplated by this rule has been given to the appropriate governmental body.

Miss. R. App. P. 44

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 44 replaced Miss.Sup.Ct.R. 44, embracing proceedings in the Court of Appeals. 644-647 So.2d LXXXIII-LXXXIV (West Miss.Cases 1994).

Comment

Rule 44 is based on Fed. R. App. P. 44 and Ala. R. App. P. 44. Failure to give notice is an omission which may be cured. Subsection (c) permits action to proceed in the case without notice by special order if the court determines that urgent action is necessary or that the challenged statute, order, or directive is so patently invalid that no response need be required from the affected body. Also, the governmental body may waive its right to respond.

The appearance of the governmental body will ordinarily be in accord with the provisions of Rule 29 concerning an amicus curiae. Pursuant to Rule 25, the certificate of service of the party raising the question of validity should reflect compliance with this rule.

The term "validity" is intended to be broad enough to encompass the method of enactment as well as the constitutionality and authority for any statute, ordinance or regulation. It does not include mere questions of construction and interpretation. This rule applies not only to appeals, but also to any extraordinary proceeding before the court. A provision for notice to the Attorney General in trial proceedings is found in M.R.C.P. 24(d).

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