                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CT-00984-SCT

JAY JONES

v.

CITY OF RIDGELAND

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         04/28/2009
TRIAL JUDGE:                              HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  KEVIN DALE CAMP
                                          JOHN MICHAEL DUNCAN
ATTORNEY FOR APPELLEE:                    BOTY McDONALD
DISTRICT ATTORNEY:                        MICHAEL GUEST
NATURE OF THE CASE:                       CRIMINAL - MISDEMEANOR
DISPOSITION:                              THE JUDGMENT OF THE COURT OF
                                          APPEALS IS VACATED. THE JUDGMENT
                                          OF THE MADISON COUNTY CIRCUIT
                                          COURT IS REINSTATED AND AFFIRMED.
                                          THE CONVICTION BY THE COUNTY
                                          COURT OF MADISON COUNTY OF DUI
                                          FIRST OFFENSE AND CARELESS DRIVING
                                          AND SENTENCE OF FORTY-EIGHT (48)
                                          HOURS IN JAIL AND A FINE OF FIFTY (50)
                                          DOLLARS, WITH CONDITIONS, AFFIRMED
                                          - 11/18/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Jay Jones entered a plea of nolo contendere in the Municipal Court of Ridgeland for

driving under the influence (DUI), possession of an open container of alcohol, and careless
driving. Jones appealed to the County Court of Madison County and, after a trial de novo,

he was found guilty of DUI and careless driving. Jones then appealed to the Circuit Court

of Madison County, which affirmed the judgment of the county court. Jones appealed to us,

and we assigned this case to the Court of Appeals. The City of Ridgeland filed a motion to

dismiss, and the Court of Appeals granted the motion pursuant to Mississippi Code Section

11-51-81 (Rev. 2002). Having granted Jones’s Petition for Writ of Certiorari, we now

consider the issue of the constitutionality of the “three-court rule” found in Section 11-51-81.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On Saturday evening, June 10, 2006, Ridgeland police officers Michael Ivy and Grady

Fisher were on patrol near the intersection of Old Canton Road and Lake Harbour Drive.1

Ivy was driving the police cruiser, and Fisher occupied the front seat, passenger side, of the

vehicle. As they proceeded east on Lake Harbour Drive, they passed the Buffalo Wild

Wings Restaurant located on the north side of Lake Harbour Drive. In the area of Buffalo

Wild Wings, Lake Harbour Drive is a boulevard with two lanes for east-bound traffic and

two lanes for west-bound traffic. Fisher observed what he believed to be an argument among

several males in the Buffalo Wild Wings parking lot. Fisher alerted Ivy, who traveled a short

distance in order to “cross over” and travel west-bound back to the Buffalo Wild Wings

parking lot. By the time the officers reached the parking lot, a man later identified as Jay

Jones was exiting the parking lot in his vehicle. Jones’s vehicle almost collided with the


       1
       Some of the facts surrounding the stop of Jay Jones’s vehicle are in dispute. For the
purpose of our discussion, we state the facts in the light most favorable to the prosecution.

                                               2
police officers’ patrol car. Jones was not wearing a seatbelt. The officers followed Jones’s

vehicle out of the parking lot and observed Jones making an unusually wide turn as he pulled

out of the parking lot traveling west on Lake Harbour Drive. Jones then turned right at the

nearby intersection and proceeded north on Old Canton Road, after failing to stop at the red

light at the intersection. Jones also failed to stop as he traveled north on Old Canton Road,

although Ivy and Fisher by then had activated the blue lights and siren of their police cruiser.

Once a second patrol car pulled alongside Jones’s vehicle, Jones stopped on Old Canton

Road. As he approached Jones’s car, Ivy observed Jones passing a beer bottle to his

passenger. When he arrived at the driver’s side door of Jones’s vehicle, Ivy detected a strong

odor of alcohol coming from inside the vehicle. Ivy administered a field-sobriety test to

Jones and a Breathalyzer test, which was positive for the presence of alcohol. Jones was

arrested and charged with DUI, careless driving, and possession of an open container.

¶3.    Jones pleaded nolo contendere in the Municipal Court of Ridgeland and appealed to

the County Court of Madison County, where he was afforded a trial de novo,2 Judge Ed

Hannan presiding. At his county-court trial, Jones filed a motion to dismiss, asserting that

the police officers had lacked probable cause to stop his vehicle. The motion was denied, and

Judge Hannan found Jones guilty of DUI and careless driving, sentencing him to forty-eight

hours in jail and fining him $700 for the DUI and $50 for careless driving.3 Jones then filed




       2
           The county-court judge conducted a bench trial.
       3
           Judge Hannan dismissed the charge of possession of an open container of alcohol.

                                               3
a notice of appeal in the Circuit Court of Madison County. The circuit court, sitting as an

appellate court, affirmed the county court’s judgment of conviction and sentence. Jones then

filed a notice of appeal with this Court, arguing that the county court had erred when it had

denied his motion to dismiss due to the police officers’ lack of probable cause to conduct a

stop of his vehicle. We assigned this case to the Court of Appeals.

¶4.    After Jones filed his appellant’s brief, the City of Ridgeland filed a motion to dismiss

the appeal. The motion was based on the “three-court rule” contained within Mississippi

Code Section 11-51-81 (Rev. 2002). In due course, the Court of Appeals entered an order

dismissing Jones’s appeal pursuant to Section 11-51-81. Jones’s motion for reconsideration

was denied by the Court of Appeals, and this Court granted Jones’s subsequently filed

petition for writ of certiorari. Upon granting certiorari, we entered an order allowing the

parties to brief the issue of the constitutionality of the “three-court rule” in Section 11-51-81,

and we likewise invited the Attorney General of Mississippi to submit a brief on this issue.4

We now have received additional briefs from Jones and the Attorney General.

                                        DISCUSSION

¶5.    Before the Court of Appeals, Jones’s main argument was that the county-court judge

had erred when he had failed to dismiss the charges against him. Jones had alleged that the

City of Ridgeland police officers who had stopped him on the night in question had lacked


       4
        This Court may request the parties to argue an issue not distinctly identified for
review. Mississippi Rule of Appellate Procedure 28(a)(3): “No issue not distinctly identified
shall be argued by counsel, except upon request of the court, but the court may, at its option,
notice a plain error not identified or distinctly specified.”

                                                4
probable cause to do so. However, whether we reach this issue today depends on our

disposition of the critical issue before this Court, the constitutionality of the “three-court

rule” contained in Section 11-51-81. Thus, we first discuss this issue.

       I.     WHETHER THE “THREE-COURT RULE” IN MISSISSIPPI
              CODE SECTION 11-51-81 IS CONSTITUTIONAL.

¶6.    The Court of Appeals dismissed Jones’s appeal pursuant to Mississippi Code Section

11-51-81 (Rev. 2002), which prohibits defendants who are aggrieved by a decision

originating in justice or municipal court, and who have appealed to both county court and

circuit court, from successfully appealing to this Court unless two requirements are met: (1)

the appeal must involve a federal or state constitutional question, and (2) either the circuit

court judge or a Supreme Court justice must “allow” the appeal. Section 11-51-81 reads:

       All appeals from courts of justices of the peace, special and general, and from
       all municipal courts shall be to the county court under the same rules and
       regulations as are provided on appeals to the circuit court, but appeals from
       orders of the board of supervisors, municipal boards, and other tribunals other
       than courts of justice of the peace and municipal courts, shall be direct to the
       circuit court as heretofore. And from the final judgment of the county court
       in a case appealed to it under this section, a further appeal may be taken to the
       circuit court on the same terms and in the same manner as other appeals from
       the county court to the circuit court are taken: Provided that where the
       judgment or record of the justice of the peace, municipal or police court is not
       properly certified, or is certified at all, that question must be raised in the
       county court in the absence of which the defect shall be deemed as waived and
       by such waiver cured and may not thereafter be raised for the first time in the
       circuit court on the appeal there to; and provided further that there shall be no
       appeal from the circuit court to the supreme court of any case civil or criminal
       which originated in a justice of the peace, municipal or police court and was
       thence appealed to the county court and thence to the circuit court unless in the
       determination of the case a constitutional question be necessarily involved and
       then only upon the allowance of the appeal by the circuit judge or by a judge
       of the supreme court.

                                              5
Miss. Code Ann. § 11-51-81 (Rev. 2002) (emphasis added).

¶7.    Of the eighty-two counties in Mississippi, twenty counties have county courts. The

litigants in these twenty counties whose cases originate in justice or municipal court and are

appealed to county court and then to circuit court may not appeal to this Court unless their

cases concern a constitutional question and the circuit judge or a supreme court justice allows

the appeal. On the other hand, litigants in the sixty-two counties that do not have county

courts may appeal to this Court when their cases originate in justice or municipal court and

are appealed to circuit court, which conducts a trial de novo.5 We find that the effect of this

statute is that it prevents this Court from hearing appeals from cases originating in the justice

or municipal courts of the twenty counties having county courts; thus, the statute usurps this

Court’s constitutional power to establish procedural rules. Accordingly, today we announce

that the “three-court rule” in Section 11-51-81 is unconstitutional and void.




       5
         Jones argues in his brief that the statute is unconstitutional because it deprives
litigants in the twenty counties with county courts of an appeal to this Court and, as a result,
violates the Equal Protection Clause. This argument was addressed in Worley v. Pappas, 161
Miss. 330, 135 So. 348 (1931), in which this Court held that the statute does not deprive
litigants of equal protection of the law. The United States Supreme Court has also held that
establishing one system of law within a particular territory of a state and another system
within other territories of the same state does not violate the Equal Protection Clause.
Missouri v. Lewis, 101 U.S. 22, 30-31, 25 L. Ed. 989 (1879). While the argument that the
statute deprives certain litigants of equal access to the courts merits recognition, the general
principle of separation of powers prohibits the Legislature from establishing procedural rules
that permit some litigants to appeal to the Court, while prohibiting others from doing so. This
is the subject of this opinion.

                                               6
¶8.    The Mississippi Constitution grants the three coequal branches of government their

power and prohibits the branches from infringing on the power granted to another. Article

1, Section 1, of our Constitution creates the three branches of government. “The powers of

the government of the state of Mississippi shall be divided into three distinct departments,

and each of them confided to a separate magistracy, to-wit: those which are legislative to one,

those which are judicial to another, and those which are executive to another.” Miss. Const.

art. 1, § 1 (1890). Article 1, Section 2, of our Constitution further separates the three

branches and prohibits one branch from exercising the power of another. “No person or

collection of persons, being one or belonging to one of these departments, shall exercise any

power properly belonging to either of the others.” Miss. Const. art. 1, § 2.

¶9.    The separation-of-powers doctrine outlined in Article 1, Sections 1 and 2, of our

Constitution prescribes the limitations on the power of each branch of government. This

doctrine ensures that the coequal branches do not encroach on the power of the others.

Alexander v. State By and Through Allain, 441 So. 2d 1329, 1335-36 (Miss. 1983).

Further, this Court has held that “[t]he rule is well settled that the judicial power cannot be

taken away by legislative action. Nor may the Legislature regulate the judicial discretion or

judgment that is vested in the courts. Any legislation that hampers judicial action or

interferes with the discharge of judicial functions is unconstitutional.” City of Belmont v.

Miss. State Tax Comm’n, 860 So. 2d 289, 297 (Miss. 2003) (citing 16A Am. Jur. 2d

Constitutional Law § 286, at 209-10 (1998)).




                                              7
¶10.   We also must be cautious not to encroach on the constitutional powers belonging to

the Legislature. See Finn v. State, 978 So. 2d 1270, 1273 (Miss. 2008) (citing Miss. Ethics

Comm’n v. Grisham, 957 So. 2d 997, 1003 (Miss. 2007)). Our appellate jurisdiction is

granted by both the Constitution and the Legislature “by general law.” Miss. Const. art. 6,

§146. Further, we have consistently held that a litigant’s right to an appeal is statutory and

“not based on any inherent common law or constitutional right.” Gill v. Miss. Dep’t of

Wildlife Conservation, 574 So. 2d 586, 590 (Miss. 1990); Flemming v. State, 553 So. 2d

505, 506 (Miss. 1989) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13,

77 L. Ed. 2d 987 (1983)).

¶11.   While the Legislature has the constitutional power to determine our appellate

jurisdiction, the Constitution also grants the judiciary the power to establish its own rules of

practice and procedure. Article 6, Section 144, states that “[t]he judicial power of the state

shall be vested in a Supreme Court and such other courts as are provided for in this

Constitution.” Miss. Const. art. 6, § 144. “The phrase ‘judicial power’ in Section 144 of the

Constitution includes the power to make rules of practice and procedure, not inconsistent

with the Constitution, for the efficient disposition of judicial business.” S. Pac. Lumber Co

v. Reynolds, 206 So. 2d 334, 335 (Miss. 1968) (citations omitted). The “fundamental

constitutional concept of separation of powers” gives this Court the “inherent power . . . to

promulgate procedural rules.” Newell v. State, 308 So. 2d 71, 76 (Miss. 1975) (citing

Matthews v. State, 288 So. 2d 714, 715 (Miss. 1974); Gulf Coast Drilling & Exploration



                                               8
Co. v. Permenter, 214 So. 2d 601, 603 (Miss. 1968); and S. Pac. Lumber. Co., 206 So. 2d

at 335 (Miss. 1968)).

¶12.    The issue before us is whether the Legislature may allow some litigants to appeal to

this Court, while placing the restrictions of a constitutional question and approval from a

circuit judge or Supreme Court justice on others. More specifically, does the “three-court

rule” in Section 11-51-81 infringe on this Court’s constitutional “power to make rules of

practice and procedure[?]” S. Pac. Lumber Co., 206 So. 2d at 335. In addressing this issue,

“we are unable to ignore the constitutional imperative that the Legislature refrain from

promulgating procedural statutes . . . .” Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008).

“We believe no citation of authority is needed for the universally accepted principle that if

there be a clash between the edicts of the Constitution and the legislative enactment, the latter

must yield.” Newell, 308 So. 2d at 77. “The rule is well settled that the judicial power

cannot be taken away by legislative action. Nor may the Legislature regulate the judicial

discretion or judgment that is vested in the courts.” 16A Am. Jur. 2d Constitutional Law §

286, at 209-10 (1998).

¶13.    In 1975, we first exercised our constitutional right to promulgate procedural rules in

Newell. Newell, 308 So. 2d at 76. Based on this authority, we adopted the Rules of Civil

Procedure in 1981, the Rules of Evidence in 1985, and the Rules of Appellate Procedure in

1995. This power is also supported by statute. Mississippi Code Section 9-3-61 states in

part:



                                               9
       As a part of the judicial power granted in Article 6, Section 144, of the
       Mississippi Constitution of 1890, the Supreme Court has the power to
       prescribe from time to time by general rules the form of process, writs,
       pleadings, motions, rules of evidence and the practice and procedure for trials
       and appeals in the Court of Appeals and in the circuit, chancery and county
       courts of this state and for appeals to the Supreme Court from interlocutory or
       final orders of trial courts and administrative boards and agencies, and
       certiorari from the Court of Appeals.

Miss. Code Ann. § 9-3-61 (Rev. 2002).

¶14.   The Mississippi Rules of Appellate Procedure begin by stating “[t]hese rules govern

procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the

State of Mississippi . . . .” M.R.A.P 1. The comment to Rule 1 explains that the rules “are

not to be construed to extend or limit jurisdiction of the Supreme Court.” Keeping in mind

this Court’s constitutional rule-making authority and the Legislature’s constitutional

authority to establish our appellate jurisdiction, the essential inquiry then becomes whether

Section 11-51-81 is a legislative grant of jurisdiction or an infringement on our power to

promulgate rules of procedure.

¶15.   We view the statute to be procedural in nature rather than jurisdictional.6 Procedure

is defined as “[t]he mode of proceeding by which a legal right is enforced, as distinguished

from the substantive law which gives or defines the rights, and which, by means of the

proceedings, the court is to administer; the machinery, as distinguished from its product.”



       6
        Accordingly, we expressly overrule this Court’s holding in Sumrall v. City of
Jackson, 576 So. 2d 1259, 1260 (Miss. 1991), that the requirements of a constitutional
question and the approval of a circuit judge or Supreme Court justice in Section 11-51-81 are
jurisdictional.

                                             10
Black’s Law Dictionary 1203-04 (6th ed. 1990). When appealing to this Court, litigants use

our Rules of Appellate Procedure as their “mode of proceeding” to ensure that the contested

“legal right is enforced.” The “three-court rule” in Section 11-51-81 essentially turns off this

Court’s “machinery” in the appeals process.

¶16.     We feel it important to emphasize that today’s opinion is not intended to address, one

way or the other, other statutes which provide for the right to an appeal. We limit our

holding today to the “three-court rule” contained within Section 11-51-81 – that and that

alone.

¶17.     The issue of legislative usurpation of this Court’s rule-making power is not without

precedent. In Newell, we held that a statute prohibiting trial judges from instructing the jury

on the testimony or weight of the evidence unless one of the parties had requested the

instruction was an unconstitutional infringement on the judiciary’s inherent rule-making

authority. Newell, 308 So. 2d at 77-78. This Court in Newell characterized procedural

statutes as “legislative suggestions,” to be followed only “unless determined to be an

impediment to justice or an impingement upon the Constitution.” Id. at 76. In Glenn v.

Herring, 415 So. 2d 695, 698 (Miss. 1982), we held that a statute requiring trial judges to

render opinions in cases taken under advisement within six months violated the doctrine of

separation of powers by impinging on our power to promulgate procedural rules. In Moran

v. Necaise, 437 So. 2d 1222, 1225 (Miss. 1983), we exercised our rule-making power by

prescribing a thirty-day time period after entry of judgment for perfecting an appeal, voiding

a statute providing a forty-five-day time period for perfecting appeals.

                                               11
¶18.   For an appreciable period of time in our nation’s history, the power to promulgate the

courts’ rules of practice and procedure was legislative. Many courts, including this Court

and several courts of our sister states, have since found this power to be judicial, rather than

legislative. In accordance with this power, the courts have judicially enacted rules and

subsequently found statutes that trespass into the realm of judicial rule-making to be void.

For example, the District Court of Maryland has held that a statutory prescription of the time

period in which a person must be brought to trial was an unconstitutional encroachment on

the judiciary. U.S. v. Howard, 440 F. Supp. 1106, 1113 (D.C. Md. 1977).

¶19.   The Attorney General argues that voiding the statute will cause this Court to be

“overwhelmed with appeals.” However, “[t]he fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of government, standing alone, will not save

it if it is contrary to the Constitution.” Alexander, 441 So. 2d at 1339 (citing INS v. Chadha,

462 U.S. 919, 944, 103 S. Ct. 2764, 2780-81, 77 L. Ed. 2d 317, 340 (1983)).

¶20.   In the end, we conclude that the “three-court rule” found in Mississippi Code Section

11-51-81 (Rev. 2002) contravenes the constitutional mandates imposed upon the Legislature

and the judiciary.7 The Legislature may not “exercise any power properly belonging” to the


       7
        The cases in which this Court and the Court of Appeals have dismissed appeals
pursuant to Section 11-51-81 are now overruled as to this point. Davidson v. State, 592 So.
2d 1006 (Miss. 1992); Sumrall v. City of Jackson, 576 So. 2d 1259 (Miss. 1991); Barrett
v. State, 491 So. 2d 833 (Miss. 1986); Alt v. City of Biloxi, 397 So. 2d 897 (Miss. 1981);
Wells v. State, 201 Miss. 249, 29 So. 2d 119 (1947); Kitchens v. State, 198 Miss. 346, 22 So.
2d 493 (1945); State v. Warren, 197 Miss. 13, 19 So. 2d 491 (1944); Keeton v. State, 197
Miss. 11, 19 So. 2d 477 (1944); Johnson v. City of Hattiesburg, 170 Miss. 527, 155 So. 418
(1934); Gray v. Crump, 162 Miss. 251, 139 So. 463 (1932); Williams v. State, 160 Miss.

                                              12
judiciary. Miss. Const. art. 1, § 2. We thus find this portion of Section 11-51-81 to be

unconstitutional:

       [A]nd provided further that there shall be no appeal from the circuit court to
       the supreme court of any case civil or criminal which originated in a justice of
       the peace, municipal or police court and was thence appealed to the county
       court and thence to the circuit court unless in the determination of the case a
       constitutional question be necessarily involved and then only upon the
       allowance of the appeal by the circuit judge or by a judge of the supreme court.

It is within this Court’s power to determine the rules of practice and procedure, and we are

of the opinion that the framers of the Constitution never intended that the Legislature

determine which litigants may appeal to this Court and which litigants must end their pursuit

of justice in the circuit court. Accordingly, we find today that this Court has jurisdiction to

hear the merits of Jones’s appeal.

¶21.   Having found a portion of Section 11-51-81 to be unconstitutional, we need to make

perfectly clear that our finding on this issue in no way affects the constitutionality of the

remainder of Section 11-51-81. Mississippi Code Section 1-3-77 (Rev. 2005) states in

pertinent part:

       If any section, paragraph, sentence, clause, phrase or any part of any act passed
       hereafter is declared to be unconstitutional or void, or if for any reason is
       declared to be invalid or of no effect, the remaining sections, paragraphs,
       sentences, clauses, phrases or parts thereof shall be in no manner affected
       thereby but shall remain in full force and effect.



489, 135 So. 199 (1931); Williams v. Town of Flora, 13 So. 3d 875 (Miss. Ct. App. 2009);
Wilkins v. City of Florence, 970 So. 2d 260 (Miss. Ct. App. 2007); Withers v. City of Pearl,
919 So. 2d 1050 (Miss. Ct. App. 2005); Johnson v. State, 879 So. 2d 1057 (Miss. Ct. App.
2004); Sasser v. City of Richland, 850 So. 2d 206 (Miss. Ct. App. 2003); Draper v. City of
Flowood, 736 So. 2d 512 (Miss. Ct. App. 1999).

                                              13
Thus, it is without question from express legislative language that this statute is severable,

and the remainder of the statute is effective. Lewis v. State, 765 So. 2d 493, 500 (Miss.

2000). See also O’Neal v. Simpson, 350 So. 2d 998, 1003 (Miss. 1977).

¶22.   Because of our disposition on this issue, we now proceed to address the issue

originally raised by Jones on appeal.

       II.    WHETHER LAW ENFORCEMENT OFFICIALS HAD
              PROBABLE CAUSE TO STOP JONES PRIOR TO HIS ARREST.

¶23.   At his trial in county court, Jones filed a motion to dismiss the charges against him

based on what Jones believed to be the police officers’ lack of probable cause to stop his

vehicle as it traveled north on Old Canton Road in the City of Ridgeland on the night in

question. The county-court judge requested that the parties submit briefs on the issue of

probable cause to stop and subsequently denied Jones’s motion to dismiss. Jones was found

guilty of DUI and careless driving. While this case was before the Court of Appeals, that

court dutifully dismissed Jones’s appeal pursuant to Section 11-51-81. Understandably, based

on the dismissal pursuant to statute, there was no need for the Court of Appeals to consider

the merits of Jones’s lack-of-probable-cause argument. We do so now.

¶24.   “When considering a motion to dismiss, this Court’s standard of review is de novo.”

Meadows v. Blake, 36 So. 3d 1225, 1229 (Miss. 2010) (citing Scaggs v. GPCH-GP, Inc.,

931 So. 2d 1274, 1275 (Miss. 2006)).

¶25.   “An automobile stop is . . . subject to the constitutional imperative that it not be

‘unreasonable’ under the circumstances. As a general matter, the decision to stop an


                                             14
automobile is reasonable where the police have probable cause to believe that a traffic

violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135

L. Ed. 2d 89 (1996) (citing Del. v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 59 L. Ed. 2d

660 (1979); Pa. v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977)). The

test for determining probable cause in Mississippi is the totality of the circumstances.

Harrison v. State, 800 So. 2d 1134, 1138 (Miss. 2001) (citing Haddox v. State, 636 So. 2d

1229, 1235 (Miss. 1994)). Probable cause has been defined as:

       a practical, nontechnical concept, based upon the conventional considerations
       of every day life on which reasonable and prudent [persons], not legal
       technicians, act. It arises when the facts and circumstances within an officer’s
       knowledge, or of which [that officer] has reasonably trustworthy information,
       are sufficient in themselves to justify a [person] of average caution in the belief
       that a crime has been committed and that a particular individual committed it.

Conway v. State, 397 So. 2d 1095, 1098 (Miss. 1980) (quoting Strode v. State, 231 So. 2d

779, 782 (Miss. 1970)).

¶26.   While Jones makes a lack-of-probable-cause-to-stop argument, he likewise argues that

the stop was illegal because the events causing Ivy to stop Jones occurred on private property

and were not a violation of any law. Jones directs our attention to Vaughan v. Lewis, 236

Miss. 792, 112 So. 2d 247 (1959), in which this Court held that statutes regulating public

roadways and intersections “obviously have no legal application . . . so far as the regulation

of traffic on private property is concerned.” Vaughan, 236 Miss. at 798, 112 So. 2d at 249.

However, Vaughan unquestionably has no application to the facts of today’s case. Vaughan

involved a collision between two trucks on private property during the construction of the


                                               15
Columbus Air Force Base in Lowndes County. This Court merely held that the statutory rules

of the road had no application to an accident occurring on private property. Id. Obviously,

Vaughan lends us no guidance in considering the facts of today’s case, in which two City

of Ridgeland police officers were dutifully patrolling the city streets of Ridgeland when they

observed a disturbance in the private parking lot of Buffalo Wild Wings, a business open to

the general public and situated within the corporate limits of the City of Ridgeland.

¶27.   Police officers may enter private property that is open to the general public to

investigate criminal activity. Waldrop v. State, 544 So. 2d 834, 838 (Miss. 1989) (citing 1

W. Lafave, Search and Seizure, § 2.3, 318 (1978)). This Court has held that a valid traffic

stop may be based on observations made on private property. Dies v. State, 926 So. 2d 910,

919 2006). In Dies, Mississippi Bureau of Narcotics agents observed the smell of burnt

marijuana coming from a car in the parking lot of a bar in Columbus, Mississippi. Id. at 913.

Rather than stopping the defendant in the parking lot, the agents contacted a Columbus police

officer and informed the officer of what they had observed. Id. Based on the observations

made by the narcotics agents, the police officer stopped the defendant after he had driven his

car out of the parking lot and onto a public road. Id. This Court held that the stop was valid,

partly because the information observed by the agents was “in space that was open to the

public” and “[t]he agents in no way entered into a space in which [the defendant] had a

reasonable expectation of privacy.” Id. at 918.

¶28.   Similar to Dies, in the present case, Ivy observed illegal activity on private property

and subsequently stopped Jones on a public road. Additionally, based on the totality of the

                                              16
circumstances, we find that Ivy did have probable cause to stop Jones. Ivy testified that

Jones had been arguing with another man in the Buffalo Wild Wings parking lot, had nearly

collided with his patrol car, had appeared intoxicated, and was not wearing a seatbelt. Ivy

decided to stop Jones and watched as he exited the parking lot and entered a public road.

Upon exiting the parking lot, Jones made an unusually wide turn on to a public road and

failed to stop at a red light. Ivy testified that, based on these observations, he formed the

opinion that Jones was driving under the influence. The evidence also revealed that Jones

ran the red light at the Lake Harbour Drive/Old Canton Road intersection and proceeded

north on Old Canton Road. Likewise, even though Ivy and Fisher had activated the blue

lights and siren of their police cruiser, Jones still failed to stop as he traveled north on Old

Canton Road. Only after a second patrol car pulled alongside Jones’s vehicle, did Jones

finally stop on Old Canton Road. As he approached Jones’s car, Ivy observed Jones passing

a beer bottle to his passenger, and once he arrived at the driver’s side door of Jones’s vehicle,

Ivy detected a strong odor of alcohol coming from inside the vehicle. Ivy administered to

Jones a field-sobriety test and a Breathalyzer test which was positive for the presence of

alcohol.

¶29.   These circumstances are “sufficient in themselves to justify a [person] of average

caution in the belief that a crime has been committed and that” Jones committed it. Conway,

397 So. 2d at 1098 (quoting Strode, 231 So. 2d at 782). Accordingly, we find that the county

court did not err in denying Jones’s motion to dismiss based on the police officers’ alleged

lack of probable cause to stop Jones’s vehicle on the city streets of Ridgeland.

                                               17
                                       CONCLUSION

¶30.   We granted certiorari to determine the constitutionality of the “three-court rule” in

Section 11-51-81. We hold that the three-court rule found in the statute is unconstitutional

because it usurps this Court’s constitutional rule-making power and violates the doctrine of

separation of powers. Thus, we state today that any litigant whose case originates in either

justice court or municipal court, and whose case is ultimately decided by the circuit court,

whether it be via a trial de novo or on appellate review from a final judgment of the county

court conducted by the circuit court under the applicable statute, shall have the right to appeal

to this Court.

¶31.   Finally, in considering the merits of the additional issue raised on appeal, we find no

merit in Jones’s contention that the City of Ridgeland police officers lacked probable cause

to conduct a traffic stop of the vehicle Jones was driving. Therefore, we vacate the Court of

Appeals’ judgment of dismissal. We affirm the Madison County Circuit Court’s judgment

which affirmed the judgment of conviction and sentence entered by the County Court of

Madison County.

¶32. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED. THE
JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REINSTATED
AND AFFIRMED. THE CONVICTION BY THE COUNTY COURT OF MADISON
COUNTY OF DUI FIRST OFFENSE AND CARELESS DRIVING AND SENTENCE
OF FORTY-EIGHT (48) HOURS IN JAIL AND A FINE OF FIFTY (50) DOLLARS,
WITH CONDITIONS, AFFIRMED.

    GRAVES, P.J., DICKINSON, KITCHENS, CHANDLER AND PIERCE, JJ.,
CONCUR. RANDOLPH, J., CONCURS IN PART II AND IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., CONCURS IN PART


                                               18
AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH AND LAMAR, JJ.

       WALLER, CHIEF JUSTICE, CONCURRING IN PART AND IN RESULT:

¶33.   By striking down the three-court rule as a violation of separation of powers, the

majority asserts that this Court—not the Legislature—dictates the right to appeal. According

to the majority, this Court has the power to determine its own jurisdiction. I believe that such

a concept is foreign to our Constitution and to our laws.

¶34.   Though I agree that Jones’s conviction and sentence should be affirmed, I strongly

disagree with the majority’s treatment of Section 11-51-81 of the Mississippi Code, also

known as the three-court rule. Miss. Code Ann. § 11-51-81 (Rev. 2002). First of all, we

should not address the constitutionality of the three-court rule because that issue was not

raised before the circuit court, the Court of Appeals, or in Jones’s petition for writ of

certiorari to this Court. But if we must address the issue, I find the rule to be constitutional.

The three-court rule does not violate the separation-of-powers doctrine because the

Legislature determines the right to appeal and sets, along with our Constitution, this Court’s

appellate jurisdiction. Furthermore, the equal-protection argument was laid to rest long ago

by this Court and by the Supreme Court of the United States. Worley v. Papas, 161 Miss.

330, 135 So. 348 (1931); see Missouri v. Lewis, 101 U.S. 22, 11 Otto 22, 25 L. Ed. 989

(1879).

¶35.   Even if the three-court rule arguably does violate the separation-of-powers doctrine,

I believe that this Court should adopt the rule as its own, considering that the rule does not


                                               19
violate any constitutional rights and because of our longstanding recognition and application

of the rule.

¶36.   For these reasons, which are elaborated further below, I respectfully concur in part

and in result.

                                       DISCUSSION

       I.        Because the constitutionality of the three-court rule was not
                 challenged at trial or on appeal, we should not address the issue.

¶37.   The constitutionality of the three-court rule was not raised in Jones’s petition for writ

of certiorari. The Court, instead, asked for supplemental briefing on that particular issue

when it granted Jones’s petition.

¶38.   As a principle of sound judicial administration, we generally do not consider issues

that were not first presented to and decided by the trial court. E.g., Educ. Placement Servs.

v. Wilson, 487 So. 2d 1316, 1320 (Miss. 1986); Luther T. Munford, Mississippi Appellate

Practice § 3.7, 3-24 (2006) (citing Wilson, 487 So. 2d at 1320).            Challenges to the

constitutionality of a statute, in particular, are not considered unless specifically pleaded.

E.g., State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 37, 153 So. 2d 257, 260

(Miss. 1963) (citing Pacific State Box and Basket Co. v. White, 296 U.S. 176, 56 S. Ct. 159,

80 L. Ed. 138 (1935)).

¶39.   I do not contest this Court’s right to ask parties to file supplemental briefing on an

issue. Miss. R. App. P. 28(a)(3). I believe we have the authority to do so even as to issues

that were not raised at trial or on appeal. But we should use care and the utmost restraint in


                                              20
doing so to refrain from becoming “the originators instead of the settlers of litigious

disputes.” See V.A. Griffith, C.J., Mississippi Chancery Practice § 564 (2d ed. 1950). I fail

to see the urgent need for us, at our own insistence, to address the constitutionality of a

statute that, in my judgment, poses no threat to the fabric of our judicial system and for which

no wrong was asserted on appeal. I believe it would have been better to have simply

addressed the issues raised before us and left the constitutionality of the three-court rule for

a case where that issue is assigned as error on appeal.

¶40.   Though I disagree with the Court’s decision to raise and request supplemental briefing

on the constitutionality of the three-court rule, that decision stands. As a result, I am

compelled to express why I believe that the three-court rule is, in fact, constitutional.

       II.     Because the Legislature prescribes whether or not a right of appeal
               exists and defines, alongside our Constitution, this Court’s
               appellate jurisdiction, the three-court rule does not violate the
               separation-of-powers doctrine.

¶41.   In considering the constitutionality of the three-court rule, we should bear in mind that

legislative enactments carry a strong presumption of constitutionality. E.g., Estate of

McCullough v. Yates, 32 So. 3d 403, 412 (Miss. 2010) (citations omitted). Statutes must

be proven beyond a reasonable doubt to be unconstitutional. Id. Any doubt must be resolved

in favor of upholding the validity of the statute. Id. (citing Univ. of Miss. Med. Ctr. v.

Robinson, 876 So. 2d 337, 339-340 (Miss. 2004)).

¶42.   The three-court rule is a statutory directive that governs the right to appeal from

circuit court to this Court in any case that (1) originated in justice, municipal, or police court,


                                                21
and (2) was appealed previously to county court. Miss. Code Ann. § 11-51-81 (Rev. 2002).

It allows an appeal in such instances only where the case involves a constitutional question.

Miss. Code Ann. § 11-51-81 (Rev. 2002). By this statute, the Legislature is prescribing when

a right of appeal exists and limiting this Court’s jurisdiction, both of which it may do.

¶43.   The right of appeal is purely a creature of statute. E.g., Abney v. U. S., 431 U.S. 651,

656, 97 S. Ct. 2034, 2038 (1977). Our longstanding, well-established caselaw supports that

a party has no right to appeal unless the Legislature gives such right by statute. Marshall v.

State, 662 So. 2d 566, 568-71 (Miss. 1995) (stating that the “Legislature has plenary power

over appeals where the Mississippi Constitution has not limited this power,” and pointing out

that the right to appeal is subject to legislative change); Bickham v. Dep’t of Mental Health,

592 So. 2d 96, 97 (Miss. 1991) (stating that “[a] right of appeal is statutory”) (citing Jones

v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993 (1983)); Gill

v. Miss. Dep’t of Wildlife Conservation, 574 So. 2d 586, 590 (Miss. 1990) (recognizing that

“a party has no right of appeal, except insofar as it has been given by law”); Fleming v.

State, 553 So. 2d 505, 506 (Miss. 1989) (stating that “[a]n appeal is a matter of statutory

right and not based on any inherent common law or constitutional right”) (citing Jones, 463

U.S. at 751); Sanford v. Bd. of Supervisors, Covington County, 421 So. 2d 488, 490-91

(Miss. 1982) (noting that “an appeal is not a matter of right but is subject to the statutory

provisions”) (citing Bradley v. Holmes, 242 Miss. 247, 134 So. 2d 494 (1961)); Miller

Transporters Ltd. v. Johnson, 252 Miss. 244, 249, 172 So. 2d 542, 544 (1965) (asserting

that “[t]he right to appeal is a statutory privilege, granted and defined by the legislature”);

                                              22
McMahon v. Milam Mfg. Co., 237 Miss. 676, 679, 115 So. 2d 328, 330 (1959) (stating that

“[a]ppeals are regulated by statute, and only lie in cases provided by statute”) (citations

omitted); State ex rel. Patterson v. Autry, 236 Miss. 316, 320, 110 So. 2d 377, 378 (Miss.

1959) (stating that a right to appeal must be supplied by statute) (citations omitted), overruled

on other grounds; J.R. Watkins Co. v. Guess, 196 Miss. 438, 17 So. 2d 795, 796 (1944)

(noting that “[t]he requirements for appeals are purely statutory”) (citation omitted),

overruled in part on other grounds; Jackson v. Gordon, 194 Miss. 268, 273, 11 So. 2d 901,

902 (1943) (pointing out that “[a]ppeals are not matters of right, and are allowable only in

cases provided by statute”); Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 187, 199

So. 270, 272 (1941) (stating that “[i]n this state, appeals are regulated by statute and only

allowed in cases provided by statute”) (citations omitted); State v. Poplarville Sawmill Co.,

119 Miss. 432, 441, 81 So. 124, 127 (1919) (stating that “[a]ppeals are regulated by statute,

and only lie in cases provided by statute”) overruled in part on other grounds; Bridges v. Bd.

of Supervisors of Clay County, 57 Miss. 252, 254 (1879) (stating that “[i]t has been settled

from an early day in this State that appeals are not a matter of right, and are allowable only

in cases provided for by statute”) (citations omitted); see also Rosson v. McFarland, 933

So. 2d 969, 971 (Miss. 2006) (stating that “an appeal is not a matter of right but is subject to

. . . statutory provisions”) (citing Bradley, 242 Miss. 247); Wolfe v. City of D’Iberville, 799

So. 2d 142, 150 (Miss Ct. App. 2001) (Southwick, P.J., concurring) (explaining that

“whether there is a right to move beyond the initial court to a higher level, i.e., whether there



                                               23
is a right to appeal, has traditionally been held to be a matter solely of legislative discretion”)

(citing Gill, 574 So. 2d at 590).

¶44.   The three-court rule is nothing more than the Legislature exercising its authority to

define the right of appeal in certain categories of cases. To suggest that this power belongs

to us is to insinuate that we are the arbiters of our own appellate jurisdiction.             Our

Constitution makes clear that this is not the case.

¶45.   Mississippi’s Constitution vests itself and the Legislature with the authority to

establish this Court’s appellate jurisdiction. Section 146 of the Mississippi Constitution

states that this Court “shall have such jurisdiction as properly belongs to a court of appeals

and shall exercise no jurisdiction on matters other than those specifically provided by this

Constitution or by general law.” Miss. Const. art. 6, § 146. The statement that this Court

“shall have such jurisdiction as properly belongs to a court of appeals” should not be

construed over broadly as giving us some type of inherent, appellate authority. This Court

interpreted similar language found in Article 4, Section 4, of the Constitution of 1832, as

meaning simply that the framers purposed to establish an appellate tribunal. Dismukes v.

Stokes, 41 Miss. 430, 432-33, 1867 WL 2306 at *1 (Miss. Err. App. 1867). The Dismukes

Court went on to explain that the determination of what matters “properly belong” to such

appellate tribunal “depend[s] on general considerations of public policy, which, for the most

part, must be determined by the [L]egislature, subject to such restrictions on their general

powers as are contained in the [C]onstitution.” Id. at 433. Section 146 affirms and

strengthens this notion. Unlike any provision within the Constitution of 1832, Section 146

                                                24
expressly limits our jurisdiction to those matters specifically provided by the Constitution or

by “general law.” Miss. Const. art. 6, § 146. The term “general law” undoubtedly means

legislative acts, as evidenced by the very next sentence of Section 146, which states that

“[t]he Legislature may by general law . . .” give this Court jurisdiction over certain types of

cases. Miss. Const. art. 6, § 146 (emphasis added).

¶46.   Dismukes affirms the Legislature’s authority to limit this Court’s jurisdiction. The

appellants in that case attempted to appeal the circuit court’s affirmance of a decision by the

county’s board of police. Dismukes, 41 Miss. at 432. The appellee, however, sought to

dismiss the appeal because a certain statute in effect at that time made the judgment of the

circuit court final, thus negating a right to appeal. Id. The appellants contested that this

statute was unconstitutional because it denied them a right to appeal to this Court (then

known as the High Court of Errors and Appeals). Id. This Court upheld the statute and

found that, as a general rule, “the [L]egislature has the power to deny the right of prosecuting

. . . an appeal in this court, in any particular case, and that a rule so enacted will be

conclusive of the question of jurisdiction, unless it be in contravention of a positive right .

. . .” Id. at 434. Significantly, the Court added that nothing is “more clearly within the

legislative power over matters pertaining to public policy, than the question, in what cases

and to what courts shall a party be entitled to an appeal . . . .” Id. at 433-34.

¶47.   In sum, determinations concerning the right to appeal and the jurisdiction of this Court

belong to our constitution and to the Legislature.



                                              25
       III.   The Supreme Court of the United States has held that statutes like
              the three-court rule do not violate the Equal Protection Clause of the
              Fourteenth Amendment, and this Court has held specifically that the
              three-court rule does not deprive litigants of equal protection under
              the laws.

¶48.   Although the majority strikes down the three-court rule on the grounds of separation

of powers, there are equal-protection undertones in its opinion as well. Underlying this entire

controversy is the idea that the three-court rule is unfair to litigants who reside in one of the

twenty counties that feature a county court. Why should those litigants’ right to appeal be

any different from litigants who reside in one of the sixty-two counties that do not have a

county court? Yet these distinctions are legally valid under the Equal Protection Clause.

¶49.   Back in 1931, this Court held that the three-court rule does not deprive litigants of

equal protection under the law. Worley, 161 Miss. 330. Worley admittedly lacks much in-

depth analysis on the subject. But the Supreme Court of the United States has spoken more

thoroughly and authoritatively to the issue.

¶50.   In Lewis, the Supreme Court addressed a constitutional challenge to Missouri state

law which granted its citizens the right to appeal to the state supreme court from any circuit

court, but refused this right to citizens of one municipality and four counties. Lewis, 101

U.S. at 29. For those particular localities, the Missouri Constitution established a separate

court of appeals. Id. An appeal was allowed from that court of appeals to the state supreme

court only if the amount in controversy exceeded a certain amount and the case involved

certain subject matter. Id. Appellants challenged that these laws violated the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution because

                                               26
it denied litigants in those particular localities a right to seek redress in the state’s highest

court . Id. The Supreme Court found no merit in this argument. Id. at 29-33. The Court

held that states have the “undoubted power” to regulate the jurisdiction of their own courts

and to prescribe differences based on locale, including variations with regard to the finality

of decisions. Id. at 30-33.

       [The Fourteenth Amendment] contemplates persons and classes of persons.
       It has not respect to local and municipal regulations that do not injuriously
       affect or discriminate between persons or classes of persons within the places
       or municipalities for which such regulations are made. The amendment could
       never have been intended to prevent a [s]tate from arranging and parcelling out
       the jurisdiction of its several courts at its discretion. . . . It is the right of every
       State to establish such courts as it sees fit, and to prescribe their several
       jurisdictions as to territorial extent, subject-matter, and amount, and the finality
       and effect of their decisions, provided it does not encroach upon the proper
       jurisdiction of the United States, and does not abridge the privileges and
       immunities of citizens of the United States, and does not deprive any person
       of his rights without due process of law, nor deny to any person the equal
       protection of the laws, including the equal right to resort to the appropriate
       courts for redress. The last restriction, as to the equal protection of the laws,
       is not violated by any diversity in the jurisdiction of the several courts as to
       subject-matter, amount, or finality of decision, if all persons within the
       territorial limits of their respective jurisdictions have an equal right, in like
       cases and under like circumstances, to resort to them for redress. . . . As
       respects the administration of justice, [each state] may establish one system of
       courts for cities and another for rural districts, one system for one portion of
       its territory and another system for another portion. Convenience, if not
       necessity, often requires this to be done, and it would seriously interfere with
       the power of a [s]tate to regulate its internal affairs to deny to it this right. We
       think it is not denied or taken away by any thing in the Constitution of the
       United States, including the amendments thereto.

Lewis, 101 U.S. at 30-31.

¶51.   Thus, according to Lewis, states may limit appellate review based on locale so long

as the law applies equally to every person within that particular area. Id. at 30-33. Because

                                                 27
the three-court rule applies equally to every person within the twenty counties that it affects,

the rule does not offend the Equal Protection Clause. There is, of course, the possibility that

distinctions like those made by the three-court rule could be aimed at, or have the effect of,

discriminating against a certain class or race. See id. at 32. I fail to see how that could be

the case here, considering that the counties with county courts have diverse demographics

and that those counties are spread across different parts of the state.

¶52.   I find no legal basis to conclude that the three-court rule deprives litigants of equal

protection under the law.

       IV.    Because the three-court rule does not violate any constitutional
              rights and, because of this Court’s longstanding recognition and
              application of the rule, the Court should adopt the rule as its own.

¶53.   Even if I am wrong and the three-court rule does in fact violate the separation-of-

powers doctrine, I am convinced that we should nevertheless uphold the statute, because it

does not violate anyone’s constitutional rights and because of this Court’s longstanding

recognition of the rule.

¶54.   Our separation-of-powers framework is not so rigid that it requires us to strike down

every statute that arguably encroaches upon this Court’s rule-making turf. Hall v. State, 539

So. 2d 1338, 1346 n.20 (Miss. 1989). Certainly, we are obligated to correct legislative

encroachments when “the decades have evidenced a constitutional impingement, impairing

justice . . . .” Newell v. State, 308 So. 2d 71, 78 (1975). But otherwise, we should give

deference to legislative expressions not out of obligation or accession to authority, but out

respect for the Legislature as “as that branch of government closest to the people whom all

                                              28
branches have been created to serve.” Hall, 539 So. 2d at 1346 n.20. Even Newell—the

landmark case in which this Court first asserted its inherent rule-making power—recognized

the need for some level of deference: “[W]e hasten to say that as long as rules of judicial

procedure enacted by the legislature coincide with fair and efficient administration of justice,

the Court will consider them in a cooperative spirit to further the state’s best interest . . . .”

Newell, 308 So. 2d at 78.

¶55.   We may choose to adopt legislative rules as our own where the invasion is minor,

where the Legislature has acted within its authority, and where this Court has followed the

rule for many years. See Haralson v. State, 308 So. 2d 222, 223-224 (Miss. 1975); Hall v.

State, 539 So. 2d 1338, 1346 n.20 (Miss. 1989). Each of those criterion are satisfied here.

As already discussed, the Legislature acted within its authority to pass the three-court rule.

Moreover, this Court has invoked that rule to dismiss appeals since at least 1931. Williams

v. State, 160 Miss. 489, 135 So. 1999 (1931). Perhaps most importantly, the three-court

rule’s invasion, if there be any, is minor. The rule does not infringe upon anyone’s

constitutional rights. As set forth above, the limitation prescribed by the three-court rule

does not deprive anyone of equal protection under the law. Nor is the rule manifestly unjust.

It permits appellate review by the circuit court, and it does not completely foreclose review

by this Court. This is evidenced by the fact that we are considering this very case. The rule

provides that a circuit judge or a justice may “allow” an appeal where the case involves a

constitutional question. Miss. Code Ann. § 11-51-81 (Rev. 2002). To that end, the rule is

pragmatic and efficient. It preserves judicial resources, but at the same time, gives us

                                               29
discretion to apply those resources when needed to address issues of fundamental

importance.

¶56.   Just because we may have the right or the power to strike down the three-court rule

as an encroachment on our rule-making authority does not mean we should do so. Indeed,

“a branch of government could be commended for not insisting on exercising its full range

of power.” Wolfe, 799 So. 2d at 149 (Southwick, P.J., concurring). I see no harm in us

adopting and continuing to follow a rule which does nothing to impair justice.

                                       CONCLUSION

¶57.   I would prefer that we not address the constitutionality of the three-court rule, because

it was not raised at trial or on appeal. Nevertheless, I believe that the Legislature had the

right to enact the rule. Even if it did not, I maintain that this Court should adopt the rule as

its own.

¶58.   For these reasons, I respectfully concur in part and in result.

RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.




                                              30
