Osborne v. Neblett and the Separation of Powers: Does the Legislative Power to Make Law Include the Power to Declare that Rights Under the Law Cannot Be Waived? 30 Miss. C. L. Rev. 461 (2012).

Mississippi College Law Review


A first principle of Mississippi law is that the three branches of government are separate and equal in their constitutional spheres. The legislature makes the law, the executive enforces the law, and the judiciary applies the law in cases and controversies. Each branch has core powers, necessary to fulfill its constitutional duties, that the others may not encroach upon. Among the core powers of the judiciary is the power to set procedures for the efficient resolution of cases. Legislative enactments that conflict with those procedures are unconstitutional.

The Mississippi Court of Appeals’ decision in Osborne v. Neblett, however, calls this principle into doubt.1 In Osborne, a divided court held that the judicial waiver doctrine does not apply to claims that a foreclosure sale was void due to a violation of the publication requirements in Mississippi Code section 89-1-55. If Osborne was correctly decided, the court of appeals has identified an exception to the rule against legislative interference with judicial procedure—the legislative power to declare certain acts null and void as a matter of substantive law includes the power to prevent a court from applying the judicial waiver doctrine to a litigant’s claim for relief from the void act.

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