Whose Burden of Proof is it, Anyway?
July 7, 2015 § 6 Comments
There must be a gazillion cases that stand for the proposition that the proponent of a position in a case bears the burden of proving every element of the position by competent evidence. It’s not the opponent’s job to do that. And it certainly is not the judge’s, because for the judge to step in and make sure that one party or the other is meeting his or her burden would — or should — subject that judge to sanctions by the Judicial Performance Commission. When the proponent fails to meet the burden of proof, dismissal is appropriate. That’s what R41(b) is for.
The above principle has me scratching my head over a recent COA decision.
Sharon Harris filed a complaint for a TRO and preliminary injunction against the National Oak Park High School Alumni Association, Inc. (NOPHSAA), seeking to prevent the organization from removing her as president because it had not followed its own bylaws. After reviewing legal memoranda submitted by the parties, the chancellor dismissed her complaint, relying on MCA 79-11-277(2), which authorizes a board of directors to remove any officer at any time with or without cause.
Sharon appealed, and asked the MSSC to supplement the record with the national organization’s bylaws and Roberts Rules of Order, which the court granted after the chancellor confirmed that those documents had been before him at the trial level, even though they were not made a part of the record. Nowhere in the record, apparently, were the organization’s Mississippi bylaws.
The COA, in Harris v. National Oak Park High School Alumni Association, Inc., decided June 30, 2015, reversed and remanded, saying this:
¶14. The record on appeal fails to reflect what NOPHSAA’s Mississippi bylaws require regarding a quorum, voting-eligibility requirements, the Board’s meeting procedures, and the validity of telephonic meetings and telephonic voting. Accordingly, we must remand this case for the chancellor to provide findings as to whether the Board followed applicable bylaw requirements for a quorum, meetings, and voting when the Board voted to dismiss Harris in a meeting where some members attended and voted by telephone. [Footnote omitted]
Now, I may be missing something, but if the record fails to reflect what the Mississippi bylaws require, and the case turns on what the Mississippi bylaws require, is the COA saying that the judge is required to make sure that they get into evidence? That’s a novel approach as far as Mississippi jurisprudence is concerned. Indeed, it’s a novel approach as far as American jurisprudence is concerned. Anyone who has ever tried a case, or sat as a trial judge, can tell you that, in the USA, it’s up to the parties, not the judge, to make a prima facie case. That’s what the term “adversarial system” means.
The COA’s decision cites Speights v. Speights, 126 So.3d 76, 82 (Miss. App. 2013), to support the above-quoted language. Speights reversed a chancellor’s award of attorney’s fees because there was no evidence in the record of its reasonability. Using that logic, the COA should have affirmed in this case, because, if the chancellor had granted Sharon her relief, his ruling would have been unsupported by any evidence at all.
The COA noted at ¶ 12 that the chancellor “provided no factual findings for appellate review.” What factual findings are required when the proponent fails to meet his or her burden of proof? The COA’s own decision states repeatedly that the key evidence is absent from the record. So even without the judge’s findings of fact the COA was able to see clearly the failure of the plaintiff to make a prima facie case, as did the astute chancellor.
In my opinion, the chancellor did exactly what a trial judge is supposed to do: dismiss this case for failure to meet the burden of proof. Does the COA think it is the chancellor’s job to investigate and make the record complete? The COA reversed a chancellor for that very thing last year.
Oh, and just for lagniappe, Sharon now has the recipe on remand for a do-over that will get her a W at trial and on the next appeal.
I hope either the COA or the MSSC fixes this lest it become precedent.
The Better Chancery Practice Blog 
I don’t disagree with your analysis, Judge; but I think the argument is that because the record is silent as to what the evidence was, that the COA can’t evaluate whether the chancellor ruled correctly. If the chancellor had recited into the record something along the lines of, “Because you presented no evidence of the Mississippi chapter’s bylaws, I find that you have not met your burden of proof as to X, Y, and Z,” then perhaps the COA would not have reversed. I’ll grant that the COA’s language is a little broader than I would have ruled, but there you go.
I don’t know what the chancellor in this case does as their usual practice, but the chancellors I used to be before have a bad habit of conducting a lot of hearings off the record. I’ve had one chancellor, who will remain nameless, refuse to go on the record because their court reporter had wandered off. I’ve had another (in a TRO proceeding) tell me that because I did not request that the hearing be on the record before the day it was set, that there was no court reporter, and thus no record. And where the proceedings are conducted off the record, I think it’s perfectly reasonable for the COA to say, “We can’t tell whether the chancellor got this right or not.” If a case is conducted off the record, my position, were I to be so unfortunate as to sit on the COA for my sins, would be to reverse and remand every single proceeding where an order was entered without a hearing transcript in the record, unless the order reflected that it was resolved on the pleadings without a hearing.
I would like to read it your way, but the Miss. bylaws were not in the record. If those decide the issue, as the COA opinion says, then that’s on the lawyers, and the judge made the correct ruling.
Reid’s point might merit a future post. Judges need to quit discouraging attorneys from making a record.
I prefer making a record, but we have too many in-chambers conferences for my liking.
Good point, it’s often the parties wanting to keep things off the record – and that’s their funeral, so to speak. But it’s intimidating to a lawyer who is relying on a trial judge’s vast room for discretion, to have to object and say, No, Your Honor, my client needs this on the record. I wish judges would not put lawyers in that position.
(Not to be confused with the practice of some judges in beginning a motion hearing with a bench conference, where the court tells the parties how it’s inclined to rule, but then allowing the parties to make a record if they so desire. That’s not ideal, but it does move things along.)
There’s a lot of variation among lawyers, and judges as well. I always will go on the record when either party wants it, and I often insist on it where I think it’s just a good idea.