“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One

May 14, 2014 § 5 Comments

Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.

COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through. 

Here’s Part One:

A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.”  Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”

More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.

I. How a decision is made at the Court of Appeals

A. Background

The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.

The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.

Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).  

B. Jurisdiction

Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.

The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.

Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.

MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.

The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.

THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).

The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).

Next: The Decision Process from initial Assignment Through Oral Argument

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§ 5 Responses to “Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One

  • Bob Wolford says:

    On a related note (i.e., the behind the scenes workings of the appellate bench), I want the inside scoop on the feud between Ed Pittman and Chuck McRae. That had to have been a hoot if you were a clerk for either of them.

  • Stewart Parrish says:

    Seems like a major lack of “true” trial experience on the appellate bench. In my opinion, municipal and justice court experience don’t count.

  • thusbloggedanderson says:

    We were puzzled over at TBA about when a case is assigned. In my civil practice, it’s been around the time a reply brief is due, which makes sense – someone needs to glance at the briefs and compare them to the criteria Judge Griffis mentions. But some criminal cases are assigned before any brief is filed.

    • Kenny Griffis says:

      TBA, the Supreme Court has absolute discretion to assign eligible cases to the COA. This discretion includes the timing of the decision.

      You are correct that some criminal cases are assigned before the final brief is filed. As a rule of thumb, however, the assignment will be made no later than shortly after the final brief is filed. The SCT is usually prompt with this decision.

      Also, this paper was written before appellate-filing was announced. E-filing has, and will continue, to change the internal process. I began a revision to the paper, based on e-filing, but it is not ready for disclosure. I will share it with Judge Primeaux when it is ready.

      In my opinion, appellate e-filing will help make the appellate decision process more efficient. I applaud the SCT and Chief Justice Waller for their efforts to roll out appellate e-filing. Please notify the Clerk if you have any problems with e-filing.

      (I also delivered this paper at the 2013 Summer School for Lawyers. If you would like a copy, please contact my office. It may still be on the Bar website.)

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