Is Equity Outmoded?
August 13, 2015 § Leave a comment
I pointed out here not too long ago that there is a significant distinction between the systems of law and equity in civil actions. Law courts (except in the case of an injunction action) grant money judgments and common-law remedies such as writ of habeas corpus. Equity (chancery courts) craft a remedy that will solve the underlying problem by crafting a remedy that may include coercion, prohibition, possession, dispossession, imposition of a trust or lien, money judgment, and any other action or combination of actions deemed appropriate to the situation.
Yet, as fundamental as that distinction is, I have posited here before that it seems more and more to be a challenging concept to our appellate courts.
Even in states that have merged law and equity, the distinction between legal and equitable remedies is important, because in those states, equitable remedies may not be imposed until the court finds that legal remedies are inadequate. UCLA Law Professor Samuel Bray has written a paper pointing out that the classification of some remedies as equitable is alive and well in jurisprudence across the nation, and that equitable remedies are actually part of a system that must not be dismantled unless and until something better replaces it. I believe his piece helps illuminate how vital equity, and chancery court, is in the scheme of our jurisprudence.
Here is the abstract:
The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of the system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the system of equitable remedies well suited to controlling a defendant’s behavior, especially in ways that are open-ended and adverbial. The system of equitable remedies is a useful and integrated whole.
This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in other aspects of American law. Finally, this argument offers a new perspective on the adequacy requirement, showing that it helps maintain the system of equitable remedies.
You can reach his article at this link. You might find his research handy next time you have a chancery appeal involving equitable remedies.
Thanks to Professor Bray for bringing this to our attention.
Maxwell’s Maxim of Equity
August 11, 2015 § 3 Comments
“It has been said: ‘[E]quity must follow the law. But where the law provides no remedy, equity may do so.’ To that we would add: Since ‘equity must follow the law,’ where the law prohibits a remedy, equity may not do so.”
That is the first sentence (footnote omitted) of the COA’s opinion in Mosley v. Triangle Townhomes, LLC, penned by Judge Maxwell, and decided July 28, 2015.
In that case, Harold Mosley had filed suit in chancery court for specific performance against Triangle Townhomes, LLC, who, he alleged, had promised to pay him “a fair and equitable finder’s fee if he found a buyer” for that company’s apartment complex. Mosley did find a buyer, who paid $6 million. Mosley, who was not a licensed real estate broker, claimed that he had repeatedly demanded that Triangle pay him, but the entity refused. He wanted the chancery court to award him a finder’s fee of between 3% and 5% ($180,000 – $300,000), since a licensed realtor would have charged 6% to 10% ($360,000 – $600,000).
Now, this would seem on the surface to be the quintessential case for equitable relief. A promise, upon which another acted in good faith, producing monetary benefit to the promisor, followed by a refusal to pay. Equity to the rescue, right?
Not so fast.
Triangle filed a R12(b)(6) motion to dismiss for failure to state a claim because MCA 73-35-33(1) prohibits any person without a license from filing suit to recover a real estate broker’s fee. Judge Maxwell described how the chancellor ruled:
¶6. The chancellor agreed that no equitable doctrine or quasi-contract theory could prevail over the clear public policy that anyone performing real-estate-broker services, even just one time, must be duly licensed. See Miss. Code Ann. § 73-35-1 (Rev. 2012); Miss. Code Ann. § 73-35-3(1), (3) (Rev. 2012). Mosley was not a licensed real estate broker. Nor did he fall under a statutory exception. See Miss. Code Ann. § 73-35-3(8) (Rev. 2012). So because section 73-35-33(1) prohibited him from suing for any fee connected with real-estate-broker services, the chancellor dismissed Mosley’s action.
Mosley appealed, and in an eight-page opinion, the COA affirmed, concluding essentially the same as had the learned chancellor.
This case illustrates that equity does, indeed, follow the law. The law prohibited Mosley from bringing his suit, and the chancellor followed the law that dictated that result. In doing so, the chancellor followed one of equity’s most ancient and keystone maxims. Judge Maxwell’s corollary: ” … where the law prohibits a remedy, equity may not do so (i.e., provide a remedy)” is the flip side of that maxim.
I’m always heartened when I see maxims and equitable principles at the heart of our appellate court decisions. I take it as a sign that maybe equity is still viable, after all. So in honor of the occasion, I propose adoption of a new maxim of equity, which I will call Judge Maxwell’s Maxim: “Where the law prohibits a remedy, equity may not provide that remedy.” Hear, hear!
The Practicality of Joint Custody
August 10, 2015 § 7 Comments
We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.
When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).
Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.
Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.
Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.
Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.
In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.
That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.
This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.
One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.
“Quote Unquote”
August 7, 2015 § Leave a comment
“There is no old age. There is, as there always was, just you.” — Carol Matthau
“Once the game is over, the king and the pawn go back into the same box.” — Italian Proverb
“If you don’t know how to die, don’t worry; Nature will tell you what to do on the spot, fully and adequately. She will do this job perfectly for you; don’t bother your head about it.” — Michel de Montaigne
An Exception to the Slayer Statute
August 6, 2015 § 1 Comment
Only yesterday I posted here about the danger posed by the untreated mentally ill in society.
Last week the MSSC handed down a decision in a case involving a “severely mentally ill man,” a homicide, and an adjudication at the trial level that he was not to inherit from his victim. The court reversed and remanded.
Here is the brief statement of grisly facts from the opinion by Justice Randolph in Estate of Armstrong: Armstrong v. Armstrong, handed down July 30, 2015:
¶2. On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989. [Fn omitted] Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
¶3. Joan’s death certificate listed her cause of death as “contusion of brain with subdural and subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple strikes to her head.
John, who experienced delusions and hallucinations and had been diagnosed as paranoid schizophrenic, admitted to the police and his sister that he had killed his mother. He was found by the circuit court not to be competent to stand trial, and was sent to Whitfield until he might become competent to stand trial.
Joan’s testate estate was opened, and John, along with his siblings, were beneficiaries. The executor filed a motion to declare John’s devise void, pursuant to MCA 91-5-33, known as the “Slayer Statute,” which provides in part as follows:
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
A guardian ad litem was appointed. She defended the motion on several grounds, but primarily on the basis that the executor failed to show that John had willfully caused Joan’s death as prescribed in the statute. The chancellor found that willfulness as provided in the statute had to be interpreted in a civil, not criminal, context, and that John’s willfulness was evidenced by:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John, “feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and felonious murder of Joan.
The chancellor granted the motion, and John’s GAL appealed.
In a case of first impression, the MSSC reversed and remanded the case to the chancery court for a determination whether John was insane at the time of the killing:
¶22. It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.
¶23. In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used by him for the purpose,” and “was no more his act, in the sense of the law, than if he had been impelled by irresistible physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)).
¶24. While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is not the duty of this Court to determine public policy. If the law as it now exists is in need of change, that task is for the Legislature.
A few thoughts about this case:
- Does this case forebode a shift in the standard for criminal responsibility?
- My hat is off to attorney Stacie Zorn for her work as GAL. She did exactly what a GAL in that role is supposed to do, and she accomplished a change in the law in the process.
- Operation of the “Slayer Statute” is a subject I have posted about here before.
- I had written yesterday’s post about mental illness week before last and scheduled it for publication yesterday. The MSSC’s Armstrong Estate decision came down in time for the resulting juxtaposition.
People in the Shadows
August 5, 2015 § 9 Comments
Ghandi is often quoted as having said that “A civilization is measured by how it treats its weakest members.” Hubert Humphrey said, “the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.”
It’s fashionable today to emphasize personal responsibility over governmental (and taxpayer) responsibility when it comes to the poor, the needy, the elderly, and even children. Government keeps looking for ways to stint on spending on people at the margins.
What those people have in common is that they are our weakest members, and arguably the weakest among them, “in the shadows of life,” are our mentally ill.
If it is true that we are to be measured by how we treat the mentally ill among us, and the moral test of our government is how we treat our mentally ill, then, I must tell you, we fail to measure up, and we fail the moral test.
Our mental heath system in Mississippi is not just broken, it is broke. It is underfunded and not up to the task.
It happens all too often that a chancellor will order a person to be committed to a state hospital one day, only for that same person to be released days or at most a couple of weeks later. The hospital does not have the resources for long-term care. Instead, the patient is admitted, then given enough medication to alleviate the symptoms, resulting in a finding that the patient is no longer a danger to himself and others, and thereby resulting in his release back into the general public. Once back on the street the person stops taking his medication and soon lapses again into being a true danger to himself and others, requiring yet another commitment proceeding, usually at the expense of the family.
Many of the unkempt, confused people you see wandering the streets are mentally ill. They are the castaways who, due to mental illness, have exhausted the support, financial resources, and patience of families and friends, leaving them nowhere to go but the streets. Mental illness impairs judgment and insight. It impairs one’s ability to take care of oneself.
More significantly, the mentally ill can be dangerous. Paranoid schizophrenics can be extremely dangerous, and even murderous. Ask the folks in Lafayette, Louisiana, whether the indisputably mad man who gunned down two innocent women in a cinema was not dangerous.
I once represented parents who had committed their paranoid-schizophrenic son to the state hospital system nearly a dozen times. He threatened to kill them, other family members, and neighbors whenever he was off of his medication. Once in the hospital, with his medication regulated, the voices in his head became more benign, and he calmed down. Then he was released, stopped taking his medication, and the demons soon returned from where the medications had banished them, more furious than ever. The parents feared for their lives, and all our system could offer them was a revolving door. Perhaps a greater level of protection would have been available if the young man actually killed or seriously maimed someone.
Let me be clear that I am not trying to stigmatize or demonize the mentally ill. Not all are dangerous. But we do have to recognize that some are, and that those do pose a threat to public safety.
It is the responsibility of the state to protect the safety of the citizenry, and to provide adequate systems for taking care of those who are so impaired that they can not care for themselves. Yet, we do not do either in Mississippi when it comes to the mentally ill.
The mentally ill have no PAC or voting bloc, as far as I know. They are not invited to, much less welcome at, $500-a-plate political fundraising dinners. We live in a pay-to-play political world, where political clout gets results. The mentally ill have no political clout, and it shows in how we prioritize their needs in our state budget.
Years ago, the standard treatment for such undesirables was to buy them a bus ticket to somewhere far away. Nowadays, we don’t buy the ticket; we simply turn them out onto the street with the hope that they will go somewhere else and be someone else’s problem.
It does not have to be this way. We can fund our mental health system at a level where it can provide an acceptable level of service. It’s the 21st century, after all. We should be at that point.
Or, we can buy bus tickets.
[This post was written before the 60 Minutes piece on this subject was aired last Sunday.]
I Think, Therefore I am, I Think
August 4, 2015 § Leave a comment
Existentialism for Millenials, by Sarah Solomon.
Researching the Research
August 3, 2015 § 5 Comments
Commoditization of legal matters has caused small-firm practitioners to look for areas to cut costs. Lawyers have told me that they have discontinued services like Westlaw and Lexis because they are simply too expensive.
Google Scholar offers a free legal research tool. You can access it at this link. I can’t really tell you how accurate or helpful it might prove to be in the routine practice of law, because I haven’t spent much time with it. I accessed it on a test basis last week and entered “joint custody impractical” as a search term. It returned a bunch of cases, all of them, as far as I could see, on point. It did not return last week’s COA decision in Thames v. Thames, which is the latest case on that issue. Nor did it give me Mosley v. Triangle Townhouses, LLC when I searched for “real estate commission for non-licensed broker,” likewise a COA case from last week. I don’t know the delay between hand-down and reporting on Google.
An article that may help you discern the strengths and weaknesses of the Google engine can be found at this link.
The MS Bar offers access to the legal search engine Casemaker as a benefit of membership, thereby saving you additional subscription fees for that service. You may have had excellent results with it, but I never did when I was practicing, and I have heard other attorneys complain about it; conversely, I have never heard anyone extol it. Your experience may be different.
If you google “free legal research engines,” you will pull up a wealth of links to various services, and you may wish to sample them.
We judges use Westlaw, and in the past have used Lexis when it offered AOC a better deal. Both are good, and produce useful, topical research results. Here in Lauderdale County the supervisors purportedly provide Westlaw as a service to the bar and jailhouse lawyers. The only problem is that access is limited to one person hired by the Sups to do the job, so lawyers are at the mercy of a non-lawyer to do their legal research for them. That’s an entirely unsatisfactory arrangement that could invite malpractice claims, and I don’t know of a single lawyer — other than the writ-writers behind bars — who avails himself or herself of this program. It might be possible for a county to provide a monthly subscription at a terminal for lawyers who pay a set fee for X amount of time, and then are billed for any overage.
No matter what your solution, you have got to have the ability to do legal research if you care to survive any amount of time as a lawyer.
— Thanks to Attorney Marcus Evans for the links to info about Google Scholar
The Better Chancery Practice Blog 