Grace and the Deep Well of Mercy
February 12, 2016 § 4 Comments
Richard Rohr’s meditation on grace, mercy, and reward-punishment theology …
I strongly believe that good theology has two important tasks: to keep all people free for God and to keep God free for all people. In my opinion, most churches do not allow God much freedom. God is always so much bigger than the theological and churchy boxes we build for “him.” Without recognizing it, many people have an operative image of God as Santa Claus. He’s “making a list and checking it twice, gonna find out who’s naughty or nice.” He rewards the good kids with toys (heaven) and punishes the bad kids with lumps of coal (hell). If you don’t have a mature spirituality or an honest inner prayer life, you’ll end up with a Santa Claus god, and the Gospel becomes a cheap novel of reward and punishment. That’s not the great Good News! An infinitely loving God is capable of so much more than such a simplistic trade off or buy out.
Bringing social acceptability to Christianity has not helped in this regard. After Constantine made Christianity the established religion of the Roman Empire in 313, the great biblical concepts of grace and forgiveness gradually were controlled by formulas and technique. Empires cannot afford too much mercy or forgiveness. Soon the Church created equations: this much sin results in this many years in purgatory or hell; this much penance results in this much time released from purgatory. Grace and forgiveness became juridical and distant concepts instead of deep spiritual realizations. Disobedience or disloyalty were seen as much more sinful than any failure to love or serve or show mercy.
The work of the priesthood became sin management much more than the marvelous work of transformation and inner realization that we see in Jesus’ ministry. Church largely became a “worthiness attainment system” managed from without, instead of a transformational system awakening us from within.
When forgiveness becomes a weighing and judging process, then we who are in charge can measure it, define who is in and who is out, find ways to earn it, and exclude the unworthy. We have then destroyed the likelihood that people will ever experience the pure gift of God’s grace and forgiveness.
When you fall into the ocean of mercy, you stop all counting and measuring. In fact, counting and weighing no longer make sense; they run counter to the experience of grace. As long as you keep counting, you will not realize that everyone is saved by mercy anyway.
I recently visited the 9/11 Memorial at the site of the Twin Towers in New York City. A huge waterfall drops down into the darkness of a lower pool whose bottom you cannot see. It struck me deeply as a metaphor for God: mercy eternally pouring into darkness, always filling an empty space. Grace fills all the gaps of the universe. Counting and measuring can only increase the space between things. Even better, water always falls and pools up in the very lowest and darkest places, just like mercy does. And mercy is just grace in action.
So you have a Kidnapped a Judge; Now What?
February 11, 2016 § 1 Comment
Three Tupelo men, obviously not members of Mensa, are behind bars after being overheard plotting to burglarize the home of Lee County Circuit Judge Paul Funderburk and to kidnap him if he were home at the time.
You can read about this bizarre development on Phillip Thomas’s and Jane Tucker’s blogs.
Kidnapping is a serious matter. Not only is it serious when a citizen’s personal safety is threatened, but also when the judiciary is threatened.
Still, once you have a judge, what are you going to do with him or her? There’s not likely to be much ransom money to be gotten. And most judges are irascible, cranky characters not particularly tolerant of inconvenience and not happy at all when not getting their way. So kidnappers would have their hands full for little prospect of gain. It reminds me of O.Henry’s Ransom of Red Chief, in which the kidnappers had to pay the father to take back the little brat they had abducted.
Kudos to the alert bystander who overheard the conversation and reported this to law enforcement.
A Bluewater Bravo
February 9, 2016 § 3 Comments
The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.
Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:
¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).
Hear, hear!
Early Look at 2016 Judicial Elections
February 8, 2016 § 3 Comments
It’s early to be looking at 2016 judicial elections, since voting is not until November, and the qualification deadline is in May. So far, though, some interesting races are shaping up:
In the MSSC, District 1, Place 3, incumbent Justice Jim Kitchens faces a challenge from COA Judge Kenny Griffis. The district includes, from west to east, Bolivar, Sunflower, Washington, Humphreys, Holmes, Sharkey, Yazoo, Issaquena, Warren, Claiborne, Jefferson, Copiah, Hinds, Rankin, Madison, Leake, Scott, Neshoba, Newton, Noxubee, Kemper, and Lauderdale Counties. Demographically, those counties are some of the richest and poorest, most and least populous, most Democratic and least Republican, and least Democratic and most Republican in the state.
[Some changes made since publication based on comments]
Newly-appointed Justice Jimmy Maxwell, elevated from the COA, is unopposed in Place 2, District 3, which is Justice David Chandler’s former post.
Circuit Judge James T. Kitchens and Columbus attorney John Brady qualified for Justice Lamar’s open Place 1. District 3 is all of north Mississippi bordering on the north of District 1.
COA Judge Ceola James is unopposed so far in District 2, Place 2.
In COA District 3, Place 1, newly-appointed Judge Jack Wilson will face Madison County Court Judge Ed Hannan. District 3 includes Clay, Oktibbeha, Lowndes, part of Attala, Winston, Noxubee, part of Leake, Neshoba, Kemper, part of Madison, Rankin, Scott, Newton, Lauderdale, Clarke, Jasper, Smith, part of Jones, and part of Wayne Counties.
COA Judge David Ishee has no opponent yet in District 5, Place 2.
In Chancery Court District 1 (Alcorn, Tishomingo, Prentiss, Union, Lee, Itawamba, Lee, Pontotoc, and Monroe Counties), Place 4, T. K. Moffett of Tupelo has qualified to run for the seat formerly held by the deceased Chancellor Talmadge Littlejohn.
And in Chancery Court District 20 (Rankin County), Place 1, John McLaurin and Jim Nix will face each other in November.
The next regularly-scheduled judicial election year for trial judges is 2018, but all of the appointments that were made in 2015 will make for an unusually busy judicial election cycle this year, since all of the appointees are required to stand for election at the next regular general election.
“Quote Unquote”
February 5, 2016 § 1 Comment
“To bargain freedom for security is the devil’s bargain. Having made the bargain, one enjoys neither freedom nor security.” — Gerry Spence
“If all that Americans want is security, they can go to prison. They’ll have enough to eat, a bed and a roof over their heads. But if an American wants to preserve his dignity and his equality as a human being, he must not bow his neck to any dictatorial government.” — Dwight D. Eisenhower
“A ship is safe in harbor, but that’s not what ships are for.” — William Greenough Thayer Shedd
Greenlee to COA
February 4, 2016 § Leave a comment
Well, I missed this completely, but back on January 19, Gov. Bryant appointed former US Attorney Jim Greenlee to fill Judge Maxwell’s spot on the COA.
Here’s a link to the press release on Jane’s Blog. Proof positive that I need to check in with Jane more often.
Directed Verdict vs. Involuntary Dismissal
February 2, 2016 § 1 Comment
After the plaintiff or petitioner has rested in a chancery court bench trial, the defendant may move to dismiss on the ground that the plaintiff or petitioner has proven no right to relief. That is an involuntary dismissal, pursuant to MRCP 41(b), commonly referred to as a “41(b) motion.”
In a jury trial, a party may move for a directed verdict at the close of the other party’s case. That is a motion for directed verdict per MRCP 50(a).
The two are entirely different creatures. A 41(b) motion has no place in a jury trial, and a motion for directed verdict has no place in a bench trial.
The distinction was noted in the recent COA case, Carlson v. Brabham, handed down January 19, 2016. Judge Griffis explained:
¶10. “In a non-jury trial, such as this case, the appropriate motion is not a motion for [a] directed verdict pursuant to Mississippi Rule of Civil Procedure 50; instead, the correct motion is a motion for [an] involuntary dismissal pursuant to Mississippi Rule of Civil Procedure 41(b).” Partlow v. McDonald, 877 So. 2d 414, 416 (¶7) (Miss. Ct. App. 2003) (citation omitted) (citing Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000)). In this case, Brabham filed a Rule 50 motion for a directed verdict, rather than a Rule 41(b) involuntary-dismissal motion.
¶11. The Mississippi Supreme Court has held that in situations such as this, an appellate court must:
[C]onsider th[e] appeal based on the correct standard of review, which under Rule 41(b) is different than the standard of review applicable to a motion for a directed verdict under Rule 50. In considering a motion for [an] involuntary dismissal under Rule 41(b), the trial court should consider the evidence fairly, as distinguished from in the light most favorable to the plaintiff, and the [trial court] should dismiss the case if it would find for the defendant. On appeal, [an appellate court] must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule 41(b)].
Id. at 416-17 (¶7) (internal quotations and citations omitted) (citing Miss. Real Estate Comm’n v. Geico Fin. Servs. Inc., 602 So. 2d 1155, 1156 n.1 (Miss. 1992)).
As I have pointed out here before, if you proceed under the wrong rule in chancery, you are inviting either of two unappetizing results: (a) the chancellor may overrule your motion because there is no such thing as directed verdict in a chancery bench trial; or (b) the chancellor may apply the wrong standard to the proof, and you could find yourself boomeranged back to chancery on a remand that you created by your own inattention to the distinction.
Some Random Thoughts on Phelps
February 1, 2016 § 4 Comments
Last week we talked about the COA’s decision in a will contest, and how the decision lays out the analysis that is required in a testamentary capacity/undue influence case.
As promised here are a few reflections on the case:
- When parties ask you to represent them in a will contest, it’s important to understand how the burden of proof operates. As was the case here, it was not enough to establish that a confidential relationship existed. There must be much more. And you can expect the other side to counter with strong proof in most cases.
- Also, physical frailty, illness, and even inability to manage one’s own business, do not establish testamentary incapacity as long as the testator understands the nature and effect of making a will, the natural objects or persons to receive his or her bounty and their relationship to him or her, and is able to determine how to dispose of his or her estate.
- This case also illustrates how critically important it is for the subscribing witness to understand his or her role. The subscribing witness is the first-line observer of the testator’s capacity.
- Cordell, the attorney, deserves posthumous kudos for his handling of Dorothy’s execution of the will. He allowed only her and the other subscribing witness into the room, satisfied himself that Dorothy had testamentary capacity, and that there was no undue influence.
- Also, Dorothy sought independent advice from Cordell, who was unconnected with Henry III. This helped overcome a finding of undue influence.
- Just because a confidential relationship exists, there is not necessarily undue influence. And even if there is a presumption of undue influence, it can be overcome by clear and convincing evidence of the factors set out in the Grantham case.
You should treat the execution of a will in your office with some solemnity and care. It is, after all, a serious occasion, oftentimes coming after long and careful deliberation by the testator. No one but the subscribing witnesses and testator should be present. Ask questions that will help you and the witnesses determine testamentary capacity: does she know her assets and their worth; does she know who her natural heirs are and how this will affect not only them but also her prior wills; how dependent is she in handling her affairs; has anyone pressured her to make this disposition? And so on. You should admonish the subscribing witnesses not to sign unless they are satisfied that the testator has capacity and is acting freely and voluntarily. You might want to make a few notes to refresh later recollection: who brought her to your office; time of day; who was present in the room when the will was signed, etc. You might even make a checklist to help you memory later. In my experience, testimony from the law office where the will was signed is often the deciding factor.
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